Islington Council (202213754)

REPORT

COMPLAINT 202213754

Islington Council

31 January 2024

Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

1. This complaint is about the landlord’s handling of its request that the resident remove a sign in his garden, and his subsequent complaints.

Determination (jurisdictional decision)

2. 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.
3. After carefully considering all the evidence, we have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

4. The resident is a tenant of the landlord. He lives in a ground floor flat with a garden. He has explained that he has significant mental illnesses.
5. In late 2021 the resident was in correspondence with the landlord in relation to a boundary fence between his garden and that of a neighbour. The resident was concerned about the fence height. At some point the resident placed a large note or sign on a post standing within his garden. The sign was brief, and referred to the resident’s concern about the fence and planning permission, and that there was a neighbour dispute.
6. On 15 December 2021 the landlord wrote to the resident telling him to “kindly remove this sign forthwith.” It did not explain why.
7. The resident responded asking why he needed to remove the sign and what he had done wrong. He explained that because of his current state of health he did not feel able to go outside, and asked the landlord if it could send someone to help him remove the sign. The landlord explained that it could not do so, saying he should ask friends or family. It urged him to remove it immediately.
8. The resident then made a formal complaint about the landlord’s request, and that it had not explained why he had to remove the sign. He explained his state of mental health and why the issues was causing him distress.
9. The landlord responded to the complaint. The resident remained dissatisfied and escalated his concerns, adding more issues based on what the landlord had said in its complaint response and other correspondence.
10. The landlord sent a further complaint response, to which the resident expressed further dissatisfaction and asked again in February 2022 to escalate the complaint.
11. Having not had a reply, the resident approached the Ombudsman for assistance in August 2022. We asked the landlord to respond to the resident. The landlord sent its final complaint response on 1 November 2022. The resident returned to this Service and asked the Ombudsman to investigate his complaint. He explained that he remained dissatisfied with the landlord’s handling of the sign issue, and its subsequent complaint handling, as well as its overall communications with him, and the delays he had experienced.
12. Shortly after bringing his complaint back to the Ombudsman the resident sent a letter before action to the landlord. He alleged disability discrimination against him in contravention of the equalities act, in regard to its handling of the original request and his subsequent complaints. The landlord responded to the claim in January 2023.
13. The resident has explained that his legal action has proceeded to the point where he has started proceedings with the courts. He has said that the landlord has responded to the courts, and a preliminary hearing date has been set.

Reasons

14. Paragraph 41(c) of the Scheme states that the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion, concern matters that are the subject of court proceedings or were the subject of court proceedings where judgement on the merits was given.
15. The Ombudsman cannot make determinations about claims of disability discrimination, which are more appropriately considered by the courts. It is therefore understandable that the resident has taken that action. The resident is not seeking such a determination from the Ombudsman, he is seeking an investigation of the landlord’s actions and decisions to determine whether they were reasonable, for example, whether the landlord has followed proper procedure, followed good practice, or behaved in a reasonable, fair, and competent manner.
16. However, the substantive matters giving rise to both the complaint and the legal action – the landlord’s actions and decisions regarding the sign and the resident’s subsequent requests and complaints – are the same. To consider the complaint the Ombudsman would be required to consider the same matters now scheduled to be considered by the courts, which the Scheme does not allow.
17. Legal proceedings are broadly considered to have started when an application is made to the courts. The resident’s complaint became one the Ombudsman could not consider at the point he applied to the court, not when he sent his initial letter before action.
18. The legal process includes all stages and steps after proceedings have started, including preliminary hearings.
19. Many of the specific concerns raised by the resident with the Ombudsman may be able to be raised as part of his legal proceedings, where he can ask the courts to consider and adjudicate on them.
20. Accordingly, in line with paragraph 41(c), the resident’s complaint is not one the Ombudsman can consider while the substantive issues are the subject of court proceedings. Nor can the Ombudsman consider the complaint after proceedings are complete, if judgements on the merits have been given.