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Optivo (202010395)

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REPORT

COMPLAINT 202010395

Optivo

15 November 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 reports of antisocial behaviour (ASB) from her neighbour;
    2. response to the resident’s reports of overgrown bushes at her property;
    3. response to the resident’s request for the windows at her property to be replaced.

Background and summary of events

Background

  1. The resident has been a secured tenant of the landlord since 16 August 2002. The tenancy agreement provided by the landlord to this service describes the tenancy as a secured weekly tenancy on the execution page, but the remaining pages which include the terms describe it as an assured tenancy. The landlord is a registered provider of social housing.
  2. The tenancy agreement notes the premises include a garden and the terms of the tenancy agreement provide that where a garden is used with the premises, it is the tenant’s responsibility to keep this in a neat and tidy condition.
  3. The tenancy agreement also provides that the landlord must keep the windows at the property in good repair.
  4. The landlord operates a responsive repairs policy. The policy notes that keeping windows in a good state of repair is the responsibility of the landlord. The policy also notes that the landlord will endeavour to provide a cyclical upgrade to windows every 30 years.
  5. The landlord operates an estates services policy. The policy provides a scoring system for its standards in relation to certain estate management aspects, including the trimming of communal bushes, which it describes as “poor” if overgrown, and “unacceptable” if there is no evidence of regular maintenance. The policy requests that any maintenance issues that are ‘poor’ or below should be reported to the landlord, but it does not give an indication as to what timeframes the landlord will carry out maintenance work within if reported.
  6. The landlord operates a two stage complaints policy. The policy notes it will acknowledge complaints within three working days and respond within 10 working days. A review can be requested, following which the landlord will also respond within 10 working days.
  7. The landlord operates an ASB policy. The policy notes the landlord will open a case where the report involves intimidation/harassment, there was a named alleged perpetrator, and where an action plan has been agreed. The landlord will also consider if the resident has any vulnerabilities and complete a risk assessment form to understand the impact on them. The action plan will include what the landlord has done following the report and what it will do moving forward, i.e. keep in regular contact with the resident. The policy also notes the landlord will involve police where necessary and will interview the alleged perpetrators to hear their version of events and discuss a resolution to the matter. The policy notes a number of ways the landlord can address ASB, such as warning letters.

Summary of events

  1. On 28 July 2020, the resident reported that her neighbour’s adult children had been living at her neighbour’s property on a permanent basis and were using the visitor bays to park. The resident advised she had raised her concerns about this with her neighbour’s daughter, and that subsequently there was a verbal altercation between her and her neighbour outside of her property. She advised she had reported this to the police, but that she also wanted the landlord to take action and give her neighbour a warning. On 6 August 2020, the landlord advised it would call her further to discuss her reports.
  2. On 7 August 2020, the resident reported that the bushes at her property were overgrown. On 8 August 2020, the resident also noted that over the previous five years she had had several repairs relating to her windows, which she described as “stiff and difficult to open and shut.” She advised that these repairs had resulted in “parts/clips” being removed from the frames which had resulted in draughts. She noted that her neighbours had recently had their windows replaced by the landlord and enquired when her windows were due to be replaced.
  3. On 10 August 2020, regarding the resident’s reports of ASB, the landlord advised it had attempted to call her but had been unable to get through. It advised it had spoken with her neighbour regarding her reports, and that her neighbour had also made counter allegations that the resident had been harassing them in relation to the parking on multiple occasions. It advised, however, that her neighbour had admitted to using swear words during the altercation referred to by the resident for which they apologised. The landlord advised that given her neighbour had apologised and that this was an isolated incident, it would not be opening up an ongoing ASB case and it requested that the resident report any further parking issues to it directly. It further advised it was happy to discuss its decision further.
  4. On 12 August 2020, the resident advised she was dissatisfied with the landlord’s decision and that she wanted an ASB case to be opened as she felt threatened by her neighbour’s behaviour, which they had admitted to. She also disputed she had harassed them. She reiterated her concerns regarding the use of the visitor bays by her neighbour’s children and subsequently requested the landlord provide a formal complaint response.
  5. On 25 August 2020, the landlord noted the resident had wanted a specific staff member to give the response, but that that staff member would not be available until September 2020. The resident replied that she did not mind who gave the formal response, but that she wanted it to include her concerns about ASB, her windows, and the overgrown bushes. The landlord subsequently advised it would provide its formal response by 11 September 2020.
  6. On 2 September 2020, the landlord advised the resident it would call her to discuss her complaints. On 3 September 2020, it advised it had attempted to call, but had been unable to get through. On 9 September 2020, the resident advised she did not wish to discuss the complaint on the phone and that she was dissatisfied the formal response was taking so long. The landlord noted that she had referred to a number of emails in her correspondence which it had not received and so advised these may have been sent to the incorrect address. It also reiterated that it would provide its formal response by 11 September 2020.
  7. The landlord provided its stage one response on 11 September 2020. Regarding the resident’s reports of ASB, it apologised for having not given sufficient weight to the complaint given the resident’s distress and advised it had now opened an ASB case and would have further talks with her neighbour. It also advised it wished to call the resident on 18 September 2020 to further discuss her concerns and it offered £20 in recognition that it should have opened an ASB case. Regarding the resident’s windows, it advised it had carried out its most recent repair to reseal the gaps on 29 June 2020, but that if there were any further repairs required, to contact its repairs team. It also advised that it understood the resident’s windows to have been replaced in 2012 and that they would therefore not be due for a further replacement until 2030-2034. Regarding her overgrown bushes, the landlord agreed these required maintenance and requested the resident provide her availability for these works to be completed.
  8. On the same date, the resident advised she was not satisfied with the landlord’s response. She requested a further apology for not having opened an ASB case and further information as to what the next steps would be. She advised that the repair works carried out to her windows had not solved the draught issue and that she disputed they had been replaced in 2012. She also requested a refund of the portion of her rent that went towards grounds maintenance as the bushes had been overgrown for three months.
  9. The landlord replied on the same date and, regarding the ASB case, advised it would initially be having a further talk with her neighbour and that it would then discuss the action plan with the resident by 18 September 2020. Regarding her other concerns it advised it required further time to respond and would aim to do so by 29 September 2020. On 14 September 2020, the landlord advised it had attempted to call the resident twice but was unable to get through. On the same date, the resident advised she did “not intend to waste any more of my time discussing anything on the phone,” and that she had referred her complaint to this service.
  10. On 16 September 2020, the landlord requested she complete a review request form in order to initially escalate her complaint with it. Regarding her ASB case, it advised it had now had further talks with her neighbour and provided her with a ‘risk assessment form’ as part of its ASB procedure. On 23 September 2020, the landlord chased up the forms, following which on 28 September 2020, the resident advised she would return them shortly but that she wanted the landlord to take further action against her neighbour in the meantime.
  11. On 3 November 2020, the resident requested a copy of the repair history for her property, along with any reports the landlord held. The landlord operates an online portal to review basic repair history information, and following her request, it gave her assistance on accessing this service. The resident reiterated that the landlord was incorrect in its comments that the windows had been replaced in 2012 and also that she had now returned the ASB risk assessment form and so requested an update as to what happened next.
  12. On 17 December 2020, the resident provided her review request form, reiterating all of her concerns and also noting her dissatisfaction that the stage one response had included inaccurate information about window replacements occurring in 2012. She reiterated she wanted the windows replaced and also that she wanted copies of any surveyor reports in relation to her property.
  13. The landlord has provided this service with its internal communications from this period, which show that as part of its stage two investigation, it sought further information on whether the windows had been replaced in 2012. The landlord was unable to uncover any records to support this, and after an inspection of the property, determined they had not been replaced.
  14. The landlord provided its stage two response on 11 January 2021. It agreed that the windows had not been replaced and apologised for this misinformation. It offered £200 to reflect the distress this misinformation had caused. Regarding replacement of the windows, it advised that its current improvement programme involved replacement of the windows every 30 years, meaning the resident’s would be up for replacement in 2026. It also advised if the windows required any further repairs, it would be able to arrange this. Regarding the overgrown bushes, it advised these had now been cut back. Regarding the ASB complaint, the landlord advised it had given her neighbour a further warning about both their behaviour and the use of visitor parking spaces. It advised it would also contact the resident every two weeks to check if there were any further issues. It also noted its earlier offer of £20 for its delay in opening the ASB case was still available.
  15. On 16 February 2021, the resident advised she was not happy to wait until 2026 for new windows and noted some neighbours had already had replacements. On 16 March 2021, the landlord queried if she was experiencing any ongoing ASB issues. It is not evident whether the resident replied to this query.
  16. On 12 July 2021, the resident also reported that the bushes at her property were overgrown again. She has since advised this service that the windows at her property have now been replaced by the landlord.

Assessment and findings

ASB

  1. When an instance of ASB is reported, a landlord’s duty is to undertake a proportionate investigation to establish the nature and extent of the anti-social behaviour and take appropriate actions. In instances of a single occurrence of a verbal altercation, the Ombudsman would consider it best practice for a landlord to discuss the incident with the resident and the alleged perpetrator and determine any necessary further steps. This may include reporting the alleged perpetrator’s behaviour to the police, who are the appropriate body to investigate if any criminal activity has occurred.
  2. Following the resident’s reports of a verbal altercation with her neighbour, the landlord appropriately acknowledged her concerns and sought to call the resident to discuss the reports further, however, it was unable to get through to her. The landlord also appropriately discussed the reports with the resident’s neighbour, who admitted to using swear words and offered an apology. Given that the resident had already reported this incident to the police, it was reasonable for the landlord not to have reported it again. The landlord followed up the resident’s report with advice as to what action it had taken, and what she should do in future regarding the misuse of the visitor parking spaces. It also offered to discuss the matter further with the resident should she wish.
  3. Given that it had received no further reports of altercations from the resident, it was reasonable for it not to consider this to be an ongoing case, for which it needed to open a formal ASB case on its system. The outcomes, such as reporting the incident to the police, the discussion with the neighbour, and the advice to the resident along with the offer of further assistance are all elements the Ombudsman would expect to see in an investigation and subsequent action plan for an incident such as this, and a finding of service failure would not be made for the landlord’s decision not to open a formal case at this stage.
  4. The Ombudsman notes, however, that the landlord’s ASB policy provides that in instances such as this, its usual practice is to open a formal case on its system, in addition to carrying out the steps above. The Ombudsman understands that taking this step demonstrates to residents that the landlord has taken their concerns seriously, especially when a resident has expressed they feel vulnerable, such as the resident did with this case. It was appropriate, therefore, that following the resident’s complaint that it had not opened a formal case, it apologised for not having done so and subsequently opened a case and that it further outlined all the steps it would take. It was also appropriate that it offered an amount of compensation in recognition that the resident was dissatisfied with its earlier actions.
  5. Following its opening of the case, the resident queried what steps it would take, to which the landlord set out the steps in accordance with it ASB policy. On a number of occasions throughout the period of the complaint, the landlord also sought to have verbal discussions with the resident within the timeframes it had stated. Following the resident’s request to deal with matter in writing only, it provided her with its risk assessment form to complete, as per its ASB policy. It appropriately chased this up to ensure her ASB case progressed, before providing her with an update as part of its stage two response as to the steps it had taken and its intention to make follow up enquiries with the resident. The landlord has also provided evidence to show it made such a follow up enquiry on 16 March 2021, and it is not evident that the resident has made any further reports of ongoing ASB.
  6. To conclude, while the landlord’s policy notes that it would open an ASB case in the circumstances of the initial incident, in the Ombudsman’s opinion, its investigation and actions following the report, including its offer to the resident for continued support was reasonable in the circumstances. Given that the resident expressed continued concern, it was also appropriate that it offered her ongoing reassurance and opened a case, and also that it offered her £20 compensation to recognise her distress.

Bushes

  1. The resident’s tenancy agreement notes that the maintenance of the garden is the responsibility of the resident, however, it is not disputed that maintenance of the communal grounds of the estate are the responsibility of the landlord. In her communications with the landlord in which the resident reported that bushes at the rear of her garden were overgrown, it is not clear if the bushes were located within her garden or behind it. Nevertheless, in its stage one response, the landlord has accepted that it is its responsibility to maintain these bushes.
  2. The landlord’s grounds maintenance policy encourages residents to report overgrown bushes to the landlord and gives visual depictions of when a bush is overgrown. The policy does not, however, give timeframes for the landlord to acknowledge such reports, nor for it to address the issues. In such circumstances, the Ombudsman would expect the landlord to have a reasonable level of communication with a resident making such reports and complete works within a reasonable timeframe.
  3. Following the resident’s initial reports of the overgrown bushes on 7 August 2020, it is not evident that the landlord acknowledged this report, despite having further communication with her regarding other issues. This led her to request that the landlord provide an update as part of its formal complaint response, which came a month later. It would have been helpful for the resident had the landlord acknowledged this report from the outset and given advice as to what steps it would take, however, it did not do this. This would have left the resident unclear as to how or whether this issue would be resolved.
  4. It is evident that the landlord’s stage one investigation included an assessment of the bushes, following which, the landlord appropriately acknowledged the bushes were overgrown and agreed to complete works to trim them. It would have been helpful if it had outlined a timeframe for these works to occur, but it did not do this. Given the resident’s concern on this issue, it would also have been helpful had it provided an update when the works had been completed, however, the landlord did not provide this update until its stage two response, some four months later.
  5. As noted above, the Ombudsman would expect a landlord’s communication and response times to be reasonable in circumstances such as these. While the maintenance of overgrown bushes does not, in the Ombudsman’s view, have a huge impact on the resident, the landlord’s failure to initially acknowledge the resident’s reports, its failure to provide timeframes to complete the maintenance works, and its failure to provide timely updates once the works were carried out fall short of what is reasonable in the circumstances and amount to service failure in this instance. The Ombudsman notes that the landlord did request to discuss the resident’s concerns with her on several occasions, which the resident did not wish to do, however, this did not prevent it from giving an email update. Given, that the impact on the resident was minor and that the landlord did eventually carry out these works, the Ombudsman considers a formal apology to be appropriate in the circumstances.
  6. The Ombudsman also notes that the resident subsequently reported that the bushes had become overgrown again and so an order will also be made that the landlord enquire with the resident as to whether any further works are required, or advise when it will next carry out an inspection and provide timeframes for any works should they be required.

Windows

  1. The landlord’s repairs policy addresses the cyclical replacement of windows, noting they are to be replaced every 30 years. This policy reflects the landlord’s programme for intended improvements, but it is not an entitlement for the resident, and it is not a requirement under the tenancy agreement. A landlord is also able to carry out improvements on other properties it owns without being obliged to do the same for all its properties, and it may not always be appropriate for it to comment on the reasons for those improvements.
  2. Outside of this replacement programme, the landlord also has a responsibility under both the tenancy agreement and its repairs policy to keep the windows at the property in good repair. It is not disputed that on a number of occasions, the resident has reported issues with the opening mechanism for her windows, following which, the landlord has carried out repairs, in line with its repairs policy and its obligations under the tenancy agreement. Following her report that they remained stiff on 8 August 2020, the landlord did not acknowledge her concerns or raise a repair. This led the resident to request it provide a response as part of its formal complaint response.
  3. In its formal response, the landlord noted it had carried out repair works to the resident’s windows in the past, including its most recent repair works in June 2020, and appropriately advised that if further repairs were required, it would arrange for these, in line with its repair policy and its responsibilities under the tenancy agreement. In response to the resident’s queries regarding the replacement of the windows, the landlord advised its understanding that they had most recently been replaced in 2012, meaning they would not be replaced under its program until 2030-2034. While it is not known on what basis the landlord believed this, based on its internal communications, it is evident that this was a genuinely held belief and not an attempt to mislead the resident. As noted above, it was reasonable that the landlord did not comment on the replacement of windows in other properties.
  4. Following the resident’s advice that her windows had not been replaced in 2012, it was reasonable that the landlord requested additional time to investigate and that it provided a specific date for its response. It was also appropriate that the landlord sought to have verbal discussions with the resident regarding her complaints, which would have assisted its investigation, and given that the resident did not wish to have this discussion, it was reasonable that the landlord’s investigation took an extended amount of time.
  5. The landlord caried out a reasonable investigation into this concern by inspecting its records and attending the property to carry out a visual inspection. It subsequently concluded that it had advised the resident in error that the windows had been replaced in 2012 and advised in its stage two response that it had made a mistake, for which it apologised. It appropriately provided further information about when improvements to the windows were likely to be carried out and reiterated its offer to carry out any interim repairs. While its misinformation did not cause any delay to the cyclical upgrade to the windows, it is evident that the misinformation caused distress to the resident which the landlord appropriately acknowledged. In the Ombudsman’s opinion, its subsequent offer of £200 compensation provided reasonable redress for this service failure. The Ombudsman notes that there has been communication between the parties already about the payment of this compensation, but it is not clear on the evidence provided to this service whether it has yet been paid. A recommendation has been made below for the landlord to reiterate this offer should it be yet to be paid.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints regarding its response to the resident’s reports of ASB from her neighbour.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaints regarding its response to the resident’s reports of overgrown bushes at her property.
  3. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord for its service failure regarding its response to the resident’s request for the windows at her property to be replaced.

 

Reasons

ASB

  1. While the landlord did not initially open a formal ASB case following the resident’s reports of a verbal altercation, its discussions with her neighbour and subsequent apology, along with its advice regarding reporting parking issues and offer of further assistance to the resident, and with the fact the incident had been reported to the police were reasonable in the circumstances.
  2. Following the resident’s further expression of distress at the incident, the landlord appropriately agreed to open a case and advised the resident of the steps it would take. It also offered her compensation to acknowledge her distress, which was an appropriate further step in the circumstances.

Bushes

  1. The landlord’s policy does not give specific timeframes for it to acknowledge reports of outstanding maintenance work, or for it to complete the works. Following the resident’s reports, the landlord did not specifically acknowledge them prior to its formal complaint response, despite being in contact with the resident on other issues. It also did not set out timeframes for the work to be completed or give timely advice once it had carried out the works. This amounted to service failure, for which a formal apology is appropriate.

Windows

  1. Regarding any repairs required for the windows, the landlord has carried out the requested repairs and offered to carry out any required further repairs on a number of occasions, in line with its repairs policy.
  2. Regarding the replacement of the windows, the landlord has given clear advice as to the timings for its cyclical replacement. While the landlord noted incorrectly that the resident’s windows had been replaced in 2012, following the resident’s dispute of this point, the landlord’s investigation was reasonable, and it appropriately accepted its error and offered compensation that provided reasonable redress for the distress this would have caused.

Orders and recommendations

Orders

  1. A senior member of the landlord’s staff to write to the resident within four weeks of the date of this determination and offer an apology for its delays and poor communication regarding the maintenance of bushes at the resident’s property. This letter must also include a query as to whether the resident considers any further maintenance works are required or provide details of when the next inspection will occur.

Recommendations

  1. Should the resident be yet to receive the landlord’s offer of £220 compensation (£200 in relation to the windows, and £20 in relation to ASB), the landlord to write to the resident within four weeks of the date of this determination and reiterate this offer.