Karbon Homes Limited inc Byker Community Trust (202228987)

REPORT

COMPLAINT 202228987

Karbon Homes Limited

20 March 2024

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 response to the resident’s:
1. Reports of antisocial behaviour.
2. Concerns about the allocation of the property below him.
3. Allegations that it discriminated against him.
The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident has an assured tenancy with the landlord, which is a housing association. The tenancy started on 14 September 2011. The landlord has no vulnerabilities recorded for the resident. The property is a 1 bedroom first floor flat.
The resident reported that he experienced Antisocial Behaviour (ASB), caused by different occupants living in the property below him, for several years. On 8 November 2021 the landlord logged an ASB case regarding noise nuisance and alleged drug use by the resident’s then downstairs neighbour. During 2022 it investigated the ASB reports and issued warnings to the resident’s neighbour who eventually left the property in October 2022. An ASB case closure letter was issued on 25 November.
The resident made a stage 1 complaint to the landlord on 12 September 2022. He said the landlord had systematically abused him by allocating the property below him to young people who he believed would target him due to his age, disability and race. He did not feel that the landlord took his reports of ASB seriously and did not get back to him and/or ignored his requests of service. He believed this was due to his age, race and disability. He requested that CCTV installed by the landlord remain in situ. He also asked for the property below to be allocated to someone of a similar age to him.
The landlord provided its stage 1 complaint response (A) on 26 September 2022, as follows:
1. It advertised and allocated its properties using the local authority’s ‘key options’ website which was a choice based lettings scheme. Priority was generally given to applicants with the most housing need in accordance with the local authority’s lettings policy. The property below had been allocated in accordance with the lettings policy and offered to the person with the highest housing need. There was no age restriction on the property meaning it would be allocated to the person with the highest housing need regardless of their age.
2. The recent ASB case was being investigated by a ‘safer communities officer’ and was on-going. Throughout the investigation it had only been able to corroborate and/or evidence incidents of ASB on a couple of occasions. It subsequently took proportionate action against his neighbour. It would continue to monitor the situation and review footage from the CCTV it had installed. It was satisfied its investigation was in line with its ASB policy.
3. It could not see any evidence that the resident or the case had been prejudiced due to age, race or disability. Appropriate support and advice was offered throughout.
4. During the ASB investigation staff had responded to the resident’s requests for service. It had provided updates in a timely manner and at appropriate intervals.
5. It acknowledged that the resident had on occasion called into its office and no staff were available to talk to him. It explained that none of its housing staff were based out of the office. It acknowledged that it should have explained to the resident that he could only meet a member of its staff at this office by prior arrangement.
6. It acknowledged the resident’s frustration “especially when waiting times to get through our contact centre have been particularly long recently.”
7. It acknowledged that on 1 occasion the resident sent an email on 28 June marked for the attention of a member of staff. This email was allocated to another member of staff to respond to but was not passed to her until the 11 of July. It had explained the delay and apologised.
8. It had encountered a significant increase in enquiries both by emails and telephone calls which had caused some delays in responding to these enquiries. It had taken steps to address this in both reducing its call waiting times and responding to emails.
9. It apologised and offered £25 compensation.
10. The property did not have any age restrictions therefore, it could not guarantee that the next applicant would be of a similar age.
11. The CCTV camera was installed on a temporary basis to evidence any ASB.
12. It encouraged the resident to report any new incidents and to use the ‘IWitness’ service where appropriate.
13. It also offered to support the resident in finding alternative accommodation should he wish to move.
On 22 December 2022 the resident emailed the landlord to reiterate his concerns about ASB caused by occupants of the property below him and its approach to allocations. He also gave specific examples where he felt the landlord had discriminated against him. The first example was when he was asked to remove an England flag he had drawn on the external wall of his property. The second was the landlord’s response to his complaint about rubbish left by his outgoing neighbour. The landlord raised a stage 2 complaint to address issues already investigated at stage 1 (A). It raised a new stage 1 complaint (C) to investigate the new elements relating to discrimination.
The landlord issued its stage 2 complaint response (B) on 11 January 2023, as follows:
1. It assured the resident that the property was not being used as temporary accommodation. It was allocated in line with the local authority’s allocations policy. It said it had not deliberately rehoused tenants that would engage in ASB.
2. It repeated the findings set out in its stage 1 response in relation to its investigation of reports of ASB.
3. Staff members had been spoken to and all refuted that there was any intention to discriminate against the resident in any way.
4. It apologised again for the delayed response to the resident’s email of 28 June.
5. The resident had advised that staff had responded to issues raised but had not resolved the ASB issues. It asked the resident for examples of when staff had discriminated against him because it had been unable to find evidence.
The landlord issued its stage 1 complaint response (C) on 13 January 2023, as follows:
1. During its visit to the resident on 25 October 2022 he was advised not to paint anything on the wall as this was not permitted and would be a breach of tenancy. The resident did not say that the landlord had explicitly agreed he could do so. Therefore, its position was that permission to paint the flag had not been given. It did, however, accept that there may have been a misunderstanding.
2. Its records showed that the rubbish was left some time between 19 October and 15 November 2022. It therefore disputed that it had been there for 6 months by the time of the resident’s complaint. It was satisfied that the steps it had taken were appropriate as was the action taken against his neighbour.
3. Its investigation found no evidence of discrimination. It was satisfied that the course of action taken was in line with its policies and procedures. It concluded that the resident was not treated differently to other residents during the process.
During a phone call with the landlord on 15 February 2023 the resident requested to escalate his complaint (C) to stage 2. The landlord issued its stage 2 complaint response (D) on 27 March. It said it had discussed the complaint with 5 staff members the resident had identified during a phone call with the landlord on 13 March. It found no grounds to suspend those staff. It found no evidence of discrimination and was satisfied that the action taken was in line with its policies and procedures. It did not believe that the resident was treated differently to how any other resident would have been.
The resident emailed this Service on 12 September 2023 to set out that the situation had caused him “serious distress and inconvenience.” He said his health was “permanently damaged.” He remained dissatisfied with the landlord’s response about the allocation of the property, his reports of ASB and his concerns that the landlord had discriminated against him.

Assessment and findings

Landlord’s obligations, policies & procedures

Clause 9.22 of the resident’s tenancy agreement states “you must not decorate the outside of your home unless you have our written permission to do so.”
The landlord’s allocations and lettings policy states that it participates in the local authority’s key options choice based lettings schemes. Applications are assessed and banded by the landlord in accordance with the local authority’s lettings policy. Properties are advertised on a weekly cycle on which applicants can bid.
The landlord’s ASB procedure says that it will:
1. Contact complainants within 2 working days or 1 working day in serious cases. It will complete a Risk Assessment Matrix (RAM) based on the information gathered. The total score will determine the level of risk to the complainant and the methods needed to try and resolve the situation. All high risk cases should be reported to the safe communities officers. Cases where the score is less than 25 should be allocated to the housing officer.
2. Complete an action plan with the complainant and consider tools to support them.
3. Use appropriate tools during its investigation, including:
  1. Incident report sheets.
  2. Noise monitoring equipment.
  3. Noise app.
  4. ‘Iwitness’ (professional witness service).
  5. CCTV.
4. Take action to resolve ASB, including verbal warnings and warning letters.
5. Send a closure letter if:
  1. The complainant agrees.
  2. There have been no further incidents of ASB.
  3. All reasonable action has been taken to resolve the matter.
The government’s guidance ‘putting victims first: more effective responses to antisocial behaviour’ says agencies should put the victim at the heart of their response, driven by an assessment of harm to the victim.
The landlord’s complaints, compliments and suggestions procedure (complaints procedure) states that it aims to respond to stage 1 and stage 2 complaints within 5 working days. If this is not possible it will respond at stage 1 within 10 working days and at stage 2 within 20 working days. It may request an extension of no more than 10 working days at either stage, in agreement with the resident.

Scope of the investigation

The resident has advised this Service that the landlord’s actions have impacted his health. However, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This is more appropriate for to be dealt with through the courts as a personal injury claim. This is because courts can call on medical experts and make legally binding judgements.
The resident has also complained that members of the landlord’s staff were discriminatory. This Service cannot determine whether discrimination has taken place, as these are legal terms which are better suited to a court to decide. This is in accordance with paragraph 42(f) of the Housing Ombudsman Scheme which says the Ombudsman may not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
The resident may wish to seek advice from the Equality Advisory and Support Service on 0808 800 0082 or Equality Advisory and Support Service (equalityadvisoryservice.com).
However, we can look at whether the landlord responded fairly and appropriately to the resident’s allegations of misconduct by its staff and to the corresponding complaint handling.

Landlord’s response to reports of ASB

The resident reported ASB caused by his neighbour on 8 November 2021. The following day, the landlord spoke to the resident over the phone, completed a RAM and wrote an initial action plan. It sent the resident a copy of the action plan and incident report sheets. It also provided details of its IWitness service.
On 10 November 2021 the landlord issued an advisory letter to the resident’s neighbour. The landlord’s response was appropriate because it was proportionate and in line with the landlord’s ASB procedure. As the case was considered high risk it was appropriately allocated to a safe communities officer, as confirmed in the landlord’s stage 1 complaint response (A) on 26 September 2022.
The ASB case was open from 9 November 2021 and closed on 25 November 2022 when the resident’s neighbour moved out of his property. During that period the landlord completed 8 RAMs at appropriate intervals. This demonstrates that the landlord acted appropriately by taking a proactive approach to risk management, reviewing the situation as the case progressed.
It carried out an initial action plan when the case was first opened on 9 November 2021 and revisited the action plan on 1 February and 14 June 2022. This was in line with its ASB procedure and evidenced that the landlord took a victim led approach. This was because it formally reviewed the case, and action it had taken, with the resident at appropriate intervals.
During the investigation the landlord appropriately utilised the tools set out in its ASB procedure. It offered the resident use of the noise app however, he advised that it was not compatible with his phone. The landlord responded appropriately by arranging for the local authority to install noise monitoring equipment.
The equipment was installed into the living room of the property on 7 April and 26 August 2022. The feedback report following installation on 26 August appropriately analysed each of the 32 recordings. It concluded that there was no evidence of ASB or noise nuisance. It is not clear why a similar report was not provided following the installation on 7 April therefore, there was a record keeping failure.
In line with its ASB procedure the landlord installed CCTV at the resident’s property on 7 April and 26 August 2022. There is no evidence that the CCTV captured any ASB. On 12 September the resident asked the landlord to leave the camera in place permanently in case any ASB occurred. In its stage 1 response of 26 September the landlord appropriately agreed to leave the camera in situ while it monitored the situation.
It said it would review its decision in due course but made it clear that it could not remain permanently. The landlord’s position was reasonable. The ‘observation point certificates’ signed by the resident on each of the installation dates referred to the property being used for observation purposes on behalf of the landlord only. There was no suggestion that the CCTV had been gifted to the resident for his sole use. In light of its decision, the landlord acted appropriately by giving the resident advice on installing his own CCTV.
In accordance with its ASB procedure the landlord appropriately offered the resident the use of its ‘IWitness’ service to be contacted out of hours. During the period 13 February to 12 August 2022 the resident contacted the service on 7 occasions. The professional witnesses attended but did not find evidence of any ASB.
The landlord provided the resident with incident report sheets. The resident used them to report 8 incidents between December 2021 and February 2022. Although the landlord was not able to gather evidence of ASB through the methods described above, was able to do so from the incident report sheets. It also received a police notification about an incident which took place at the neighbour’s property during August 2022.
In line with its ASB procedure the landlord took appropriate and proportionate action against the resident’s neighbour. It sent advisory letters on 10 November 2021 and 16 February 2022. A tenancy warning was issued on 13 May and it made at least 2 attempts to speak with the neighbour during June and July. A further warning letter was issued on 22 August.
In recognition of the distress caused to the resident by living in his property, on 12 October 2022 the landlord offered to support a move for him. Although the resident declined the landlord said the offer would remain open should he change his mind. By considering his individual needs the landlord demonstrated that the resident was at the “heart of its response.”
When the landlord did close the case, it did so in line with its ASB procedure. This was because it sent a closure letter to the resident on 25 November 2022 advising that all reasonable action had been taken.
The resident’s complaint to this Service on 12 September 2022 said that he did not believe that the landlord took his reports of ASB seriously and that he did not receive a service. Overall, the landlord’s response to the resident’s reports of ASB was appropriate. The landlord’s investigation demonstrated that it took the reports seriously, and its actions were in line with its ASB procedure because:
1. It took a victim led approach to its investigation.
2. It used a wide variety of tools to assist the resident to gather evidence.
3. It provided out of hours support.
4. It took timely and proportionate action against the resident’s neighbour.
Therefore, this investigation finds there was no maladministration by the landlord in its response to the resident’s reports of ASB.

Allocation of property

On 12 September 2022 the resident advised the landlord that he felt it had “systematically abused him by allocating the neighbouring property to young people who he believes would target him due to his age, disability and race.” In his email to this Service on 12 September 2023 the resident said that he believed that the landlord was “shirking its responsibility” by referring to the local authority because he felt it was responsible for the property below.
In its stage 1 complaint response (A) of 12 September 2023 and its stage 2 complaint response (B) of 11 January 2023 the landlord appropriately set out that the neighbouring property was allocated through the local authority’s choice based lettings scheme. It provided a detailed explanation as to how the scheme worked in practice. Furthermore, it confirmed that because there was no age restriction in place therefore compatibility with neighbours could not be considered.
It reassured the resident that past lettings had been in accordance with the local authority’s lettings policy. It also provided reassurance that it had not deliberately rehoused antisocial tenants into the property below.
Given that the resident had not provided any evidence to the contrary the landlord’s response to the resident’s concerns was reasonable and fair in the circumstances. Therefore, this investigation finds there was no maladministration in the landlord’s response to the resident’s concerns about the allocation of the property below.

Response to allegations

The resident’s complaint about discrimination focussed on 3 specific issues and the members of staff involved. The resident felt that the landlord had discriminated against him because he had a foreign name, referring to its behaviour as “systemic racial discrimination.”
The first instance related to a visit carried out by the landlord to the resident on 25 October 2022. During a conversation with the landlord to discuss his complaint on 9 January 2023, the resident said he had asked if he could draw on the outside wall of his flat. The resident recalled that he was told “yes.” He then received a letter from the same visiting officer on 13 December 2022 to say that he had breached his tenancy agreement.
The landlord acted appropriately by discussing the complaint with the relevant members of staff. However, the landlord’s account of events differed. In its stage 1 complaint response (C) of 13 January 2023 it said that the attending officers recalled advising him not to draw on the wall. Furthermore, they had said that if he did so he would be in breach of his tenancy.
The landlord acknowledged that there may have been a misunderstanding but it was confident permission had not been given. Given the terms of the resident’s tenancy agreement it was reasonable that the landlord would refer to this as the basis for needing permission. Therefore, the landlord’s approach in its letter of 13 December 2022 was reasonable.
The landlord should however consider how its investigation could have been better informed by accurate, live file notes. Had a detailed file note of the visit been made, the landlord would have been sure of its position rather than making a finding based on its own staff’s recollection versus the resident’s. A recommendation has been made accordingly.
Secondly, the residents downstairs neighbour had left a broken door, table and chairs outside his outdoor storage space which he said had been there for 6 months. The resident felt the landlord acted more quickly against him than it had against his neighbour, due to his name. In its stage 1 complaint response (C) of 13 January 2023 the landlord appropriately referred to its records which it said showed that the rubbish was not there on 19 October 2022. It said however, it was in situ by 15 November so it knew it was there then but it was certain it had not been there for 5 months by the time of the complaint. It said it was satisfied that its action was both timely and appropriate.
The landlord’s stage 1 complaint response (C) of 13 January 2023 concluded that there was no evidence of racial discrimination by the landlord towards the resident. Upon escalation of his complaint on 15 February 2022, the landlord called the resident on 13 March to discuss the situation. It then interviewed 6 members of staff who had dealt with the resident’s enquiries, making dated notes of each conversation. This was evidence that the landlord took the resident’s ongoing dissatisfaction seriously and was committed to carrying out a thorough review of his complaint.
The landlord’s stage 2 complaint response (D) dated 27 March 2023 addressed the resident’s request that the member of staff he had identified be suspended. It explained how it had conducted its conversations with its staff members and why it had concluded there were no grounds for suspension. The landlord was appropriately open and transparent about how it had conducted its investigation and how it had arrived at its conclusion.
Thirdly, the resident felt the landlord had not responded to his reports of ASB because it was discriminating against him as a “foreigner.” The landlord’s stage 1 complaint response (A) of 26 September 2022 and stage 2 complaint response (B) confirmed that the landlord had scrutinised its data base and spoken to relevant members of staff at each stage. It concluded that the evidence showed its staff had acted in line with their job roles and responsibilities and had not discriminated against the resident in anyway. It advised the resident that it would be happy to consider any specific examples of discrimination however, none were provided.
This investigation is satisfied that the landlord took the complaint seriously because:
1. A different senior member of staff independently reviewed the complaint at each stage.
2. It conducted a thorough investigation by speaking to individual staff members.
3. Having made its initial conclusions, it was open to consider further evidence if provided.
4. It was open and transparent about its investigation.
Therefore, this investigation finds there was no maladministration in the landlord’s response to the resident’s complaint that it had discriminated against him.

Complaint handling

During a conversation with the landlord on 22 December 2022 the resident raised dissatisfaction around the stage 1 complaint response (A). He also raised a new complaint that the landlord had discriminated against him. The landlord appropriately escalated the existing complaint to stage 2 of its process and raised a separate stage 1 complaint (C) to address the new issues.
The evidence shows that the landlord took until 6 January to raise the new stage 1 complaint (C), 7 working days after the resident raised his concerns. It then took the landlord a further 6 working days to issue its stage 1 complaint response (C). The response was issued on 13 January 2023 which was 3 working days over target.
During a conversation with the landlord on 15 February 2023 the resident confirmed that he would like to escalate his complaint (C) to stage 2 of the process. The landlord issued its stage 2 complaint response on 27 March, 28 working days later and 8 working days over target.
This investigation acknowledges that the complaint handling delays were relatively short in duration. However, the landlord delayed at both stages of the new complaint causing frustration to the resident who was seeking a response on a particularly sensitive issue. The landlord failed to acknowledge or apologise for the delay which was inappropriate.
This amounts to service failure and an order has been made for the landlord to pay the resident £100 compensation.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s complaint handling.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s response to the resident’s reports of ASB.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s response to the resident’s concerns about the allocation of the property below.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s response to the resident’s allegation that it discriminated against him.

Orders

Within 4 weeks of the date of the determination the landlord is ordered to:
1. Pay the resident £100 compensation for its complaint handling failures.
2. Write to the resident to apologise for its complaint handling failures.

Recommendation

The landlord should review the case against the Housing Ombudsman’s recent Spotlight report on attitudes, respect and rights and knowledge and information management.