Midland Heart Limited (202300818)

REPORT

COMPLAINT 202300818

Midland Heart Limited

19 April 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 caused by a neighbour.
2. Allegations regarding the conduct of a member of staff.

Background

The resident has an assured tenancy with the landlord which is a housing association. The landlord has no vulnerabilities recorded for the resident.
The property is a 3 bedroom house which the resident shared with her 2 adult children.
On 14 November 2022 the resident contacted the landlord to report concerns that her neighbour was pumping a chemical into her property. She said this was causing an odour which impacted on her health. The landlord opened an antisocial behaviour (ASB) case and carried out an investigation. The case was closed on 5 December due to lack of evidence but reopened again in January following a review of the case. Having taken further steps to investigate the complaint the landlord closed the ASB case for a second time on 12 June 2023.
The resident made a stage 1 complaint on 1 December 2022 following a visit to her home by the landlord on 23 November. She said the officer who visited was “very disrespectful, unprofessional and extremely uncooperative.” She said he was Asian and she felt he was biased towards her neighbours who were also Asian. She did not feel the officer carried out a thorough investigation of her complaint.
The landlord’s stage 1 complaint response of 14 December 2022 set out the actions it took in response to the resident’s reports of ASB. It said it took the allegations regarding the conflict of interest seriously and that having carried out an investigation there was no evidence to support the allegations. Actions carried out by its tenancy services management team were appropriate and in line with its policies and procedures.
On 19 December 2022 the resident emailed the landlord to request to escalate her complaint to stage 2 of the process. She reiterated her concerns and said she did not feel that the officer was “competent and experienced” enough. She still felt that he had been biased towards her neighbours. She also did not feel that the landlord had considered the detriment caused to her by the chemical smell, particularly because the problem was becoming worse.
The landlord issued its stage 2 complaint response on 30 January 2023. It again said it took the resident’s concerns seriously. It added that after further investigation it was satisfied there was no conflict of interest. It said it had reviewed diary logs provided by the resident and arranged to carry out an unannounced visit to the resident, but no one was at home. It requested that an out of hours be carried out on 30 January to try to witness the smell. It did not uphold the complaint.
The resident contacted this Service on 29 July 2023 to report her ongoing dissatisfaction with the landlord’s response. She said the problem was ongoing and she wanted the landlord to carry out further investigation.

Assessment and findings

Landlord’s obligations, policies and procedures

The landlord’s ASB policy says it:
1. Aims to investigate complaints of ASB as efficiently as possible, and in an impartial and professional manner.
2. Will ensure reasonable and proportionate action is taken to mitigate the risk of harm.
3. Will carry out an initial risk assessment to determine the priority of the case.
4. Will agree clear actions with the resident on how it will tackle the case.
5. Will use a wide variety of methods to tackle the ASB, which, in most circumstances, will involve speaking to the subject of the complaint.
6. Will initially offer advice and support to residents on self-help options, including restorative justice.
7. Will close a case when:
  1. It has taken all available action to resolve the matter.
  2. No evidence exists or has been provided to prove the incidents of ASB have occurred.

Reports of ASB

The resident contacted the landlord on 14 November 2022 to report ASB caused by her neighbour. She said that the smell was causing a burning sensation in her stomach. The landlord appropriately advised the resident to contact her GP. She confirmed that she lived at the property with her 2 adult children who had witnessed the smell. She also said she had video and photographic evidence which she emailed to the landlord on 16 November.
In her stage 1 complaint of 1 December 2022 the resident said that when the landlord visited her on 23 November it did not ask to review the evidence. When prompted to by the resident she said the officer listened briefly to a video clip. There is no evidence that the landlord assessed all the evidence provided by the resident which was inappropriate.
It is also noted that the landlord’s file note says the resident’s daughter was at home during the visit. There is no evidence that the landlord tried to speak to her to ask for her account. If it did not feel this was appropriate at the time it could have asked the resident’s permission to contact her 2 adult children to discuss their experience at another time.
Had it done so, it would have demonstrated to the resident that it took her complaint seriously. Furthermore, it would have helped to inform the investigation. It could have provided evidence of the substantive issue or, if not, it would have provided the landlord with an opportunity to manage the resident’s expectations accordingly.
Given the nature of the complaint it was appropriate for the landlord to visit the resident at her home. It was also appropriate that it visited and inspected her neighbour’s property, which it did straight after, updating the resident accordingly. This was in line with its ASB policy which says it will speak to the subject of the complaint.
The landlord appropriately carried out a risk assessment on 28 November 2022 which assessed the risk to the resident as medium. It noted there were no vulnerabilities, that both properties had been inspected, no smell was detected and restorative justice was offered. It also agreed an action plan with the resident on 30 November in line with its ASB policy.
Considering that no supporting evidence was obtained from the 2 home visits the landlord emailed the resident on 1 December 2022 to offer restorative justice to resolve the complaint. This was in line with its ASB policy which says it will offer self-help options. It said it intended to close the case and on 5 December appropriately sent a formal closure letter. It set out that its reasons were that it had not heard back from the resident regarding restorative justice and had not received any further reports of ASB. Therefore, its reasons for closing the case were in line with its ASB policy.
The resident submitted diary logs, not seen by this investigation, during January 2023 at which point the landlord opened a new ASB case. Having reviewed the information the landlord arranged to visit unannounced at a time close to that noted on the log sheets. As no one was at home for the visit the landlord appropriately arranged for an out of hours visit to be carried out in agreement with the resident.
Given that the case was reopened it would have been appropriate for the landlord to carry out a further risk assessment and agree another action plan. However, there is no evidence that it did so which was a failure.
This was arranged for 30 January 2023 however, no one attended as promised. The resident called the landlord the following day, 31 January, to ask what had happened. In an internal email dated 1 February the visiting team said they had committed to attend between 6.00 and 7.00pm. They got stuck in traffic and were going to arrive past the agreed time so they did not attend. In the circumstances it would have been reasonable for the team to call the resident to notify her. It could have asked if she was happy for it to attend at the later time or if she wanted to rearrange. It is unclear why it did not do so which was a failure because it caused disappointment and inconvenience to the resident.
The visit was rearranged for the same day, 31 January 2023. The landlord again appropriately visited both properties, one after the other, but was unable to identify any unusual smells. However, the landlord failed to provide an update to the resident which was inappropriate. This was because it caused distress, inconvenience, time and trouble when she telephoned the landlord 4 times to find out the outcome. The landlord provided an update on 22 March in which it apologised for the delay and confirmed that the case was closed due to lack of evidence, in line with its ASB policy.
The landlord failed to:
1. Explore all sources of evidence.
2. Contact the resident about its visit on 30 January 2023 and to provide an update on the outcome.
3. Carry out a further risk assessment and agree an action plan when it reopened the case in January 2023.

These failures amount to maladministration because they had an adverse effect on the resident.

When considering redress the Ombudsman considers whether the landlord has met its dispute resolution principles which are be fair, learn from outcomes and put things right.
In its email to the resident on 2 November 2023 the landlord offered £50 compensation for the missed out of hours appointment and the associated miscommunication. This investigation has had regard to the fact that the offer of redress was made 10 months after the failure, and 4 months after the resident’s complaint was accepted for investigation by this Service. It has also considered the detriment caused by the failure and that the landlord put things right by carrying out the visit the next day. On balance the offer of compensation for this failure was fair in the circumstances.
However, the landlord failed to identify all its failings and therefore failed to put things right. The landlord has been ordered to pay an additional £100 for the failure to consider all sources of evidence and the delay in providing an update about the outcome of the out of hours visit. This is in line with the Housing Ombudsman’s remedies guidance where there has been no permanent impact.

Conduct

In her stage 1 complaint of 1 December 2022 the resident said that she felt the member of staff that visited her was “very disrespectful, unprofessional and extremely uncooperative.” She felt that the officer was insensitive because he spoke to her in a loud voice which could have been heard by her neighbours through the wall in the adjacent property.
The officer asked her what the complaint was about which led her to think he did not have all the details relating to her case. The resident said that he did not inspect the rooms where the smell was strongest. However, the landlord’s file note of 23 November 2022 disputes this, noting that all rooms were inspected except for the resident’s daughter’s room. She felt that he did not take the impact on her health seriously. She did not feel he was at the neighbouring property long enough to carry out a thorough inspection. This caused her to feel that the landlord did not take her complaint seriously.
The resident requested that someone else, “preferably someone who is not Asian” oversee her case. This was because the officer asked her to confirm the ethnicity of her neighbour. She felt there was a “strong possibility of a biased outcome” because the neighbours in question were also Asian. The landlord failed to respond to this element of the complaint which was a failure.
The landlord’s stage 1 complaint response of 14 December 2022 said that “after a further investigation” it was satisfied there was no evidence of a conflict of interest. However, it did not set out the steps it took as part of that investigation. For example, it would have been appropriate to have referred to the file note made on 23 November and/or to have discussed the complaint with the officer concerned. Given that the resident already felt she had been treated unfairly the lack of transparency in the landlord’s response reinforced her view and eroded her faith in the landlord. It is noted that it did offer to discuss its response with the resident over the phone should she wish and that there is no evidence that she pursued this.
The resident’s disappointment with the landlord’s response led to the stage 2 complaint being raised on 19 December 2022. However, the landlord again missed the opportunity to reassure the resident that it took her complaint seriously and had conducted a thorough investigation. Instead, its stage 2 complaint response of 30 January 2023 repeated the response provided at stage 1. This demonstrated an ongoing lack of understanding of the resident’s complaint and the need to evidence that it had taken reasonable steps to investigate her allegations.
This investigation has found no independent evidence to show that the officer’s behaviour was inappropriate. However, the landlord’s response lacked detail and transparency which amounts to service failure. This was because there was a minor failure which it did not acknowledge. The landlord is ordered to pay the resident £100 compensation which is in line with the Housing Ombudsman’s remedies guidance where the detriment was low and of short duration.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s reports of antisocial behaviour caused by a neighbour.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s response to the resident’s allegations regarding conduct of a member of staff.

Orders

Within 4 weeks of the date of the determination the landlord is ordered to:
1. Pay the resident a total of £200 compensation comprised of:
  1. £100 for the distress, inconvenience, time and trouble caused by the landlord’s failures in its response to the resident’s reports of ASB.
  2. £100 for the distress caused by the landlord’s failure in its response to the resident’s allegations regarding conduct of a member of staff.
2. Write to the resident to apologise for the failings in the case.
Within 6 weeks of the date of the determination the landlord is ordered to carry out a review of its response to the allegations regarding staff conduct against the Housing Ombudsman’s Spotlight report on attitudes, respect and rights. A copy of the review should be shared with the resident and the Ombudsman, also within 6 weeks.