Livin Housing Limited (202225907)

REPORT

COMPLAINT 202225907

Livin Housing Limited

6 October 2023

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 housing officer’s handling of anti-social behaviour;
   2. the landlord’s decision to serve a breach of tenancy warning letter on the resident; and
   3. his associated complaint.

Background

2. The resident had an assured shorthold tenancy that started on 14 January 2022. It converted to an assured tenancy a year later.
3. The resident alleged that he had been experiencing antisocial behaviour from a next-door neighbour. There was an incident between the resident and the neighbour on 30 December 2022 in which the resident was accused of assault and harassment. The landlord investigated the incident, but the resident was dissatisfied with the landlord’s investigation. 
4. The resident contacted his landlord on 5 January 2023 to complain about a member of its staff and an issue regarding his tenancy agreement. On 18 January 2023, the resident complained about the member of staff again. He also complained about his witness being contacted at a different time than what had been previously agreed. The resident felt he was being treated unfairly by his landlord who he thought was trying to evict him.
5. The landlord issued the resident with a breach of tenancy conditions warning on 19 January 2023. This was after a disclosure made by the police to the landlord about the incident the previous month (set out above).
6. On the following day the resident complained to his landlord that he felt the investigation was biased and improper and that his privacy had been violated.
7. The landlord explained to the resident on 23 January 2023 that it had issued the warning letter because the resident had accepted a caution from the police. It confirmed that it had spoken with the resident’s witness in January 2023.
8. The landlord explained that it would not open a complaint at stage 1 because it was dealing with the resident’s reports under its antisocial behaviour policies and procedures. It also stated that it regarded the comments made by the resident relating to its employee as offensive.
9. The resident remained unhappy about the landlord speaking with the police without his consent and complained about the alleged lack of support and professionalism from his landlord. The resident also asked his landlord what legal basis it had to obtain information from the police and disputed the employee should feel offended. The resident requested that his complaint be dealt with at stage 1 of the landlord’s complaint process.
10. On 23 January 2023, the landlord confirmed that the resident exhausted its internal process. It said it would accept information about his ongoing antisocial behaviour case. A day later the landlord clarified that it received information directly from the police and that this information was sufficient to warrant the formal written warning that he received.
11. The resident requested that the service investigate the landlord’s decision to serve him with a breach of tenancy warning and its response to his complaint.

Assessment and findings

The landlord’s handling of the resident’s complaint about the staff member

12. The resident emailed the landlord to complain about a member of staff on 5 January 2023. He said their behaviour had gone unaddressed and that his housing officer was part of the complaint. The landlord responded on the same date promptly to ask the resident for more information. This was appropriate.
13. On 18 January 2023, the resident emailed the landlord to say his housing officer was unprofessional and inexperienced. This related to how the resident felt the housing officer was handling the antisocial behaviour and specifically that they had delayed calling the resident’s witness. He further said that the housing officer called his witness around 30 minutes earlier than the arranged appointment. The resident used inappropriate language in the email to the landlord.
14. On 20 January 2023, the resident wrote to the landlord by email and said his housing officer was incompetent, childish, and inexperienced. This was on the basis that he felt they had not asked his witness appropriate questions.
15. On 24 January 2023, the landlord emailed the resident about his comments towards the housing officer. The landlord stated it did not treat his comments as a complaint due to the nature of them and treated them under its unacceptable behaviour policy. The Ombudsman cannot find fault with treating the comments as unacceptable – with a warning. However, the resident did raise concerns about the overall handling of the antisocial behaviour and the information taken from his witness which should have been considered and responded to. The comments should not have deprived the resident of having the other grounds of complaint considered.

The landlord’s decision to serve a written notice

16. The landlord’s antisocial behaviour policy defines antisocial behaviour to include verbal and written abuse and threats. The evidence provided was that the resident accepted he had used threatening behaviour and had accepted a caution from the police. The landlord was therefore justified in regarding the resident’s threats to his neighbour as antisocial behaviour. It is also clear from the resident’s tenancy agreement that he was prohibited from threatening neighbours. The landlord’s decision to act was reasonable and supported by its policies and the resident’s tenancy agreement.
17. However, there were some failures in how the landlord conducted itself following its decision to act after it was contacted by the police. The landlord was also entitled to consider the information provided by the police under its antisocial behaviour policy and procedure. However, the antisocial behaviour procedure required the landlord to investigate any incident of antisocial behaviour, and this included contacting the alleged perpetrator. This is to discuss the allegations and to undertake a subject risk assessment to identify any vulnerabilities and support needs.
18. There is no evidence that the landlord contacted the resident to discuss the incident or to do the assessment. This failure caused detriment to the resident as he was deprived of the opportunity to comment on the allegations. It was open to the landlord to decide that it had the power to issue a final written warning to the resident based on the police’s caution. However, its decision was undermined by the landlord’s failure to follow its procedure by failing to interview the resident to assess his needs in light of the counter-allegations he had made. This led to the resident feeling that the investigation was unfair and caused him distress.
19. The landlord’s antisocial behaviour procedure gives it the flexibility to decide on the most appropriate action to take in antisocial behaviour cases provided its actions are reasonable, and proportionate and it follows policy. This service has seen evidence that the landlord obtained legal advice about the best course of action to take. This was prudent and good practice, and this service acknowledges that the outcome may have been the same had the landlord interviewed the resident.
20. However, failing to interview the resident deprived the landlord of having all the available evidence to decide on the most reasonable and appropriate action to take. It was a missed opportunity to decide on any support it could offer the resident with tenancy sustainment.

Complaint handling

21. The landlord refused to consider the resident’s complaint under its complaint policy. This is because it took the view that complaints about neighbours or antisocial behaviour are dealt with under its antisocial behaviour policy. Whilst that would be appropriate where a resident was raising antisocial behaviour via the formal complaint procedure – this was not the case here. The resident specifically complained about:
    1. The housing officer in their investigation of the antisocial behaviour.
    2. The delay in contacting his witness, the failure to ask appropriate questions and calling them early on the day.
    3. The landlord’s overall decision to issue the tenancy warning.
22. All of these issues ought to have been considered via the complaint procedure.
23. The Ombudsman’s Complaint Handling Code states:

“1.7 A landlord must accept a complaint unless there is a valid reason not to do so.

1.8 A complaints policy must clearly set out the circumstances in which a matter will not be considered, and these circumstances should be fair and reasonable to residents. For example:

• The issue giving rise to the complaint occurred over six months ago. However, it may not be appropriate to exclude any complaints that concern safeguarding or health and safety issues.

• Legal proceedings have started. This is defined as details of the claim, such as the Claim Form and Particulars of Claim, having been filed at court.

• Matters that have previously been considered under the complaints policy

1.9 If a landlord decides not to accept a complaint, a detailed explanation must be provided to the resident setting out the reasons why the matter is not suitable for the complaints process and the right to take that decision to the Ombudsman. If the Ombudsman does not agree that the exclusion has been fairly applied, the Ombudsman may instruct the landlord to take on the complaint.”

24. The landlord’s letter did not meet with these outcomes and on that basis, he was deprived of having his concerns fairly considered. It was only when the resident challenged the decision did the landlord provide the details of the Housing Ombudsman.
25. Overall, the landlord therefore acted inappropriately in refusing to consider the resident’s complaint in accordance with its complaints, compliments, and feedback policy.

Determination

26. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s decision to issue a warning letter and handling of antisocial behaviour.
27. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the associated complaint.

Orders

28. It is ordered that within 28 days of the date of this determination:
    1. the landlord sends a written apology to the resident for not interviewing him and undertaking an assessment and failing to properly consider his complaints via its complaint procedure.
    2. the landlord pays the resident the sum of £200 for the distress caused to him by its handling of the complaint.
    3. write to the resident with a final response on how it handled the resident’s reports of antisocial behaviour and consider if it handled them appropriately. The landlord must give the resident referral rights to this Service.