Islington Council (202013257)

REPORT

COMPLAINT 202013257

Islington Council

31 August 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 the landlord’s:
   1. Response to the resident’s concerns that it issued him a warning letter preventing him from raising complaints regarding staff conduct.
   2. Complaint handling.

Background and summary of events

Background

2. The resident is the tenant of the property which the complaint concerns.  The landlord owns the property.
3. The property is a ground floor flat, situated on an estate.

Summary of events

4. On 28 August 2020 the landlord wrote to the resident in relation to his past and on-going complaints regarding allegations of harassment of anti-social behaviour by the estate caretaker and members of the Tenant Management Organisation (TMO).  In summary the landlord said:
   1. Despite providing the resident with “comprehensive” complaint responses addressing his concerns regarding the caretaker and members of the TMO on 10 December 2019 and 7 August 2020 he continued to email it with “allegations of harassment from them”.
   2. It welcomed communication from its residents, including complaints and request for information, however it expects their demands will be reasonable.
   3. Where a customer makes persistent demands on its service, due to volume and content, or where they habitually complain about one or more issue which has been previously and extensively investigated their behaviour may be considered unreasonable.
   4. As there had been an “excessive amount” of contact by the resident “over a prolonged period” regarding issues which it had already investigated, it was considering placing him on its Unreasonable Behaviour Register (the register).  The landlord noted that the resident’s allegations against the caretaker and members of the TMO were “unfounded”. 
   5. Inclusion of the registered would “restrict [the resident’s] interaction with [staff] and [he would] be given one point of contact”. 
5. Within its correspondence the landlord noted that the resident had received an injunction, in relation to matters concerning the caretaker and unreasonable behaviour, which expired in February 2021.
6. On the same day the resident responded to the landlord.  In summary the resident said:
   1. He was disappointed and surprised that the landlord felt that his emails and complaints were excessive. 
   2. The landlord had “continually failed” to ensure that he was “safe from physical and mental harm, free of repeated nuisance, swearing, threats, criminal damage, lies and contradiction, false information and intimidation from [the caretaker]”.  The resident confirmed that he was therefore “not complaining for the sake of complaining”.
   3. The caretaker continued to engage in an intimidating and harassing manner towards him.  The resident stated that it would therefore be wrong of him to not report the caretaker’s conduct.
   4. The measures the landlord had put in place to manage the caretaker’s conduct were clearly not working.  The resident gave the example that despite the caretaker not being permitted to enter the building the property was situated in, they had done so.
   5. Members of the TMO had also engaged in “strange intimidating behaviour” and were supporting the actions of the caretaker in harassing him.
   6. He was not the “aggressor” in the situation.
   7. If employees of any other organisation had “continuously [used] foul/ threatening language, repetitively [annoyed] or physically [assaulted] a customer” they would be “immediately sacked” however the landlord had not taken this action against the caretaker.
7. On 8 September 2020 the landlord responded to the resident, reiterating the content of its “warning letter” and confirming that it would “not engage” in “matters already discussed”.
8. On 19 January 2021 the resident contacted this Service in relation to the warning which he had received.  The resident said that he was “concerned that [the landlord [was] punishing [him] by taking away [his] right to complain about an ongoing problematic staff member”.  The resident stated that by taking away his right to complain it was giving the caretaker “a licence” to keep causing him “mental and physical harm”.
9. On receipt of the resident’s enquiry the Ombudsman contacted the landlord to determine the status of his complaint, and to request that it provide a response to his concerns if it has not already done so under its complaint procedure. 
10. In response the landlord confirmed that it imposed the warning because despite addressing “all” of the resident’s concerns regarding the caretaker and members of the TMO he continued to raise the same issues again.  The landlord noted that “to date [the resident had] not been included on the register”.  The landlord stated that it was unclear what it was “expected to formally address” and that a formal complaint response would “open up further protracted dialogue”.

Assessment and findings

Scope of investigation

11. The Ombudsman is aware that the warning which the landlord issued the resident on 28 August 2020 was as a result of the complaints which he raised concerning staff conduct.  In determining this case the Ombudsman will not look at whether the landlord’s response to the resident’s complaints about staff members was appropriate or not.  The focus of the Ombudsman’s investigation is whether the landlord’s decision to issue the resident with the warning was reasonable, and appropriate, in the circumstances, taking into account the available evidence.  This is because this is the complaint which the resident brought to this Service in January 2021.
12. The resident’s concerns regarding staff members however provides important context to the complaint which the Ombudsman can determine.
13. It should also be noted that in March 2020 the Ombudsman determined a complaint, under reference 201910283, in relation to the landlord’s response to the resident’s “report that the caretaker behaved inappropriately towards him”.  The Ombudsman ruled that the case was outside of jurisdiction on the grounds that matter was subject of court proceedings and the Local Government and Social Care Ombudsman had issued a determination on the matter.

The landlord’s response to the resident’s concerns that it issued him a warning letter preventing him from raising complaints regarding staff conduct

14. The landlord has provided the Ombudsman with evidence that between February 2019 and 7 August 2020 it responded to the resident’s concerns regarding inappropriate conduct by staff members (caretaker and members of the TMO) under its complaint procedure on multiple occasions.  The outcome of the complaints was no evidence of deliberate harassment by staff members when undertaking their duties, measures had been put in place to limit levels of disturbance the resident experienced while staff carried out their duties and lack of collaborative evidence to support inappropriate staff conduct.  Within its complaint responses the landlord noted that the resident continued to raise the same issues which he had previously done, and which had already been addressed.  Following a review of the complaints the Ombudsman can see that the resident was raising the same, or similar issues regarding staff conduct repeatedly.
15. The landlord’s complaint policy contains a section on “unreasonable and/ or unreasonable persistent complainants”. The policy sets out that “on occasions, staff will inevitably have contact with a small number of complainants who absorb a disproportionate amount of resources when dealing with their complaint. This is despite there being nothing further that can reasonably be done to assist them or rectify a real or perceived problem. In these situations, the decision may be made to classify the complainant’s behaviour as unreasonable and/or persistent”.  The policy further sets out:
    1. The policy should only be applied after all appropriate and reasonable measures had been taken to try to resolve complaints.
    2. A complainant may not be regarded as unreasonable or persistent until all the requirements of the complaint procedure have been reasonably addressed or implemented.
    3. Every effort must be taken to ensure material or substantial aspects of a complaint are thoroughly addressed while the unreasonable behaviour policy is being considered as a course of action.
16. As the evidence shows that the resident continued to repeatedly raise the same concerns regarding staff conduct which the landlord had addressed, in the Ombudsman’s opinion it was reasonable that the landlord issued the warning in accordance with the policy – to explain the consequences of his actions if he continued to raise the same issues again and to provide him with the opportunity to modify his behaviour.  The Ombudsman understands that the resident did not agree with the outcomes of his complaints regarding staff conduct, however the Ombudsman would also not expect the landlord to investigate the same issues where it has already made its position clear.
17. The Ombudsman notes that following the warning in August 2020 the resident was not included on the register.  

The landlord’s complaint handling

18. The landlord did not respond to the resident’s concerns regarding the warning letter under its complaint procedure.  In the Ombudsman’s opinion the landlord should have engaged its complaint procedure as the resident had made an expression of dissatisfaction about its actions – its decision to issue the warning notice.  The Ombudsman notes that the landlord defines a complaint as an expression of dissatisfaction within its complaint policy. 
19. In the Ombudsman’s opinion the landlord should have used a complaint response to explain and support its decision to issue the warning notice and to inform the resident of their right to refer the complaint to this Service for consideration. 
20. Further the landlord should have used the complaint procedure to address the resident’s concerns that it was taking away his right to complain.  While the Ombudsman would not expect the landlord to respond to complaints where it has already provided a response, it should consider new evidence to ascertain whether a new approach or intervention may be necessary.
21. In not responding to the resident’s concerns under the landlord’s complaint procedure it was a lost opportunity for the substantive issue to be investigated and then reviewed at a more senior level.  The Ombudsman notes that consideration of the resident’s complaint by the landlord may not have resulted in any change, however. 

Determination (decision)

22. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
    1. No maladministration in respect of the landlord’s response to the resident’s concerns that it issued him with a warning letter preventing him from raising complaints regarding staff conduct.
    2. Service failure by the landlord in respect of its complaint handling.

Reasons

The landlord’s response to the resident’s concerns that it issued him a warning letter preventing him from raising complaints regarding staff conduct

23. The landlord’s decision to issue the resident with a warning on 28 August 2020 was reasonable as the evidence shows that between February 2019 and August 2020 the resident raised multiple complaints concerning the same issue – staff conduct, which the landlord had previously responded to and addressed.  The landlord’s decision was in line with its complaint policy regarding unreasonable and/ or unreasonable persistent complaints.

The landlord’s complaint handling

24. The landlord’s decision to not issue a complaint response to address the resident’s concerns regarding the warning letter was unsatisfactory.  The landlord should have used the complaint procedure to explain and support its decision to issue the warning, address the resident’s concerns regarding his right to make future complaints and inform him of his right to refer the complaint to this Service.

Orders and recommendations

Orders

25. The landlord should pay the resident £100 compensation in respect of its complaint handling.
26. The landlord should write to the resident to confirm its position on responding to future complaints in relation to staff conduct.
27. The landlord should comply with the orders within four weeks of the date of this determination.

Recommendations

28. The landlord should share the Ombudsman’s Complaint Handling Code with staff who deal with complaints to ensure that complaints are responded to in line with best practice.