South Tyneside Council (202207333)

REPORT

COMPLAINT 202207333

South Tyneside Council

30 November 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

The complaint is about the landlord’s;
1. handling of the resident’s reports of antisocial behaviour (ASB).
2. response to the resident’s reports about the conduct of its staff.
3. complaint handling.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
After careful consideration, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The landlord’s handling of the resident’s reports of antisocial behaviour.
Paragraph 42 (l) of the Scheme states that:

42. The Ombudsman may not consider complaints which, in the Ombudsman’s opinion:

(l) seek to raise again matters which the Housing Ombudsman, or any other Ombudsman has already decided upon.

The resident has referred a complaint to this Service which has been investigated under reference 202202955. The matters raised in that complaint relate to the incidents of anti-social behaviour that the resident has referred to in this complaint. As such, having already determined these issues, the Ombudsman will not investigate this matter again.

Background and summary of events

Background

The resident is a secure tenant of the local authority landlord. She occupies a two-bedroom bungalow. The resident has informed this Service that she has the following health concerns.
1. Neuro Scoliosis, a condition which affects her spine and mobility.
2. Severe lung disease and asthma.
3. Diabetes.
The landlord has stated that its records do not identify that the resident has any vulnerabilities, however it has noted that she attends hospital appointments, and she uses mobility aids.
The landlord’s ASB policy and ASB procedure, details its approach to tackling ASB. The procedure outlines the steps it will take to investigate allegations of ASB to assess whether there is sufficient evidence to take further action. Where a complainant is anonymous and does not wish for a report to be disclosed to the perpetrator, the landlord will look to investigate the reports by making enquiries of other agencies and other residents.
The landlord’s Inclusive Services policy details how the landlord will ensure that its services are accessible, with particular emphasis on those who are vulnerable or have additional needs.
The landlord has a two stage complaints process. It will respond to stage 1 complaints within 10 working days. If it is not possible to respond to the complainant within this timescale, the landlord will contact the resident to agree a new response date which should not exceed a further 10 working days. If a resident is dissatisfied with the landlord’s response at stage 1, it can request that the complaint is escalated to stage 2. Stage 2 complaint requests should be acknowledged within 3 working days and responded to within 20 working days. Where this is not possible, a standard holding letter will be sent giving the resident a new target date which should not exceed a further 10 working days.
The landlord’s complaint procedure describes how it manages complaints from ‘unreasonable and persistent complainants’. It states that, where it decides a resident is an ‘unreasonable and persistent complainant’ it will manage the resident’s involvement with the complaint process. This may involve setting limits on the method and duration of contact.
The landlord has a matrix table in which it outlines that compensation will be made in recognition of loss, damage, unreasonable delay, major disruption, or inconvenience. There are a range of payments listed in relation to customer care aspects as follows:
1. Inconvenience resulting from a delay to service which has not incurred a cost to the customer:
  1. Up to £75 depending on the nature of the delay.
2. Poor record keeping resulting in confusion and concern from the customer:
  1. £50
3. For cases where the customer has suffered extreme inconvenience and stress because of the incident:
  1. £250
4. Where it has not followed its policies/procedures it will consider each case on its own merit and identify an appropriate amount based on the impact to the customer, and not just considering any financial loss.
The resident has raised a number of complaints with the landlord, some of which overlap in content. For the purposes of this investigation, only two of the complaints are being considered; the complaint first submitted on 10 February 2022 and the complaint made on 16 March 2022. Where the content of either of these complaints overlaps with a complaint previously investigated by the Ombudsman, the new investigation will be limited to any new issues raised.

Summary of events

The resident has reported ASB and noise nuisance from a neighbour and their visitors since 2020. The landlord had used several tools to gather evidence of ASB from the resident. This has included recording levels of noise in the neighbour’s property and liaising with other residents in the area to see if the resident’s reports could be corroborated.
On 7 February 2022 the resident reported to the landlord that she had overheard a discussion between the landlord and the neighbour in which the neighbour was told that the landlord would be using noise monitoring equipment to gather potential evidence of ASB. The resident informed the landlord that she had also overheard the resident telling a friend that he could not come in and she felt that he was modifying his behaviour since being notified that noise monitoring equipment would be used. The landlord advised the resident that it was legally obliged to give notice to the neighbour that sound monitoring equipment would be installed over the next three months.
On 10 February 2022 the landlord visited the resident at home to discuss her complaint. The landlord advised the resident that another officer was being allocated to her case and they would be in contact with her shortly. It also informed the resident that noise monitoring equipment would be installed in her home in due course. The resident expressed concerns that an officer had ‘tipped off’ the neighbour about the recording equipment. The landlord reiterated that this was a legal requirement. It also informed the resident that a complaint had been raised about the resident’s own conduct and that this was being investigated.

Complaint one

On 10 February 2022 the resident complained to the landlord. She said that:
1. An officer had breached confidentiality by informing a neighbour that noise monitoring equipment was to be installed in her home.
2. Some of her complaints were being dealt with in one response by the landlord which the resident had not agreed to.
3. The landlord had informed her that there had been a complaint about harassment made against her but did not disclose who this was from or the nature of the complaint.
The resident’s complaint was formally acknowledged by the landlord on 14 February 2022. She was informed that the landlord aimed to respond by 24 February 2022.
The landlord has advised that it spoke with the resident on 18 February 2022 to discuss the complaint and had requested an extension to the deadline, which the resident had agreed to.
The landlord responded to the resident’s complaint at stage one on 14 March 2022 and stated that:
1. It would be undertaking a review of ASB allegations made by the resident under a previous complaint and the resident would be updated in due course.
2. It had undertaken an investigation and its officers had confirmed that the resident’s name had not been disclosed to the alleged perpetrator of ASB and neither had any information she had shared with the landlord. The landlord’s complaints policy provides that the complainant’s details are withheld unless they agree to them being shared.
3. It did state that an individual can deduce, in some circumstances, who the complainant is during the course of an investigation. Further, other parties or organisations involved in the case may have shared information.
The resident sent a letter by post to the landlord asking it to escalate her complaint on 28 March 2022. The letter was received on 4 April 2022. The letter stated that:
1. The points raised in her initial complaint had not been addressed.
2. The complaint she had made had not been discussed with her.
3. She had not been given details of the allegation of harassment that had been made about her.
On 30 March 2022 the resident sent in some additional information regarding her complaint. She said that the landlord had not signed the stage one letter and she had not received a timely complaint acknowledgement or details of who to escalate her complaint to.
On 5 May 2022 the landlord sent a letter to the resident advising the complaint response would be delayed but that it hoped to respond by 19 May 2022.
The landlord responded to the resident’s complaint at stage two on 1 June 2022 as follows:
1. It was unable to disclose to the resident who had made a harassment allegation about her and details of the allegation. This was because the complainant had not given permission for the landlord to do so.
2. It did call the resident to discuss her complaint and during the telephone call the resident consented to an extension to the deadline for response.
3. It was not obliged to send out a letter with a signature in its stage one response. However, the name and the job title of the officer were included at the bottom of the letter.
4. It had provided details of how to escalate a complaint in its stage one response, however it did not specify which team the complaint should be submitted to. This was being reviewed and the landlord would seek to include this information going forward.

Complaint 2

On 16 March 2022 the resident raised a new complaint in which she stated:
1. There was poor communication from the landlord as calls she had made were not returned by a manager.
2. An officer called her a day earlier than agreed, at an inconvenient time, and persistently interrupted her during the conversation. She said that she did not want to have further contact with some named officers.
3. She was awaiting the outcome of 14 outstanding complaints with the landlord.
The landlord acknowledged the complaint on 16 March 2022 and advised that it aimed to complete its investigation by 30 March 2022.
The landlord responded on 1 April 2022. It said that:
1. A manager had attempted to call the resident back as agreed but there was no answer. They had then returned the resident’s call when they had returned to the office from leave.
2. The officer had a different recollection of the telephone call on the 9 March 2022, and they believed that the call had ended pleasantly. The call was not recorded so there is no independent evidence of the conversation. Only certain calls to the landlord were recorded and this service could not be extended to all calls due to resource implications.
3. The landlord could not guarantee that two named officers would not contact her as they were a small team.
The resident asked to escalate her complaint on 13 April 2022. This was acknowledged the same day, and the landlord informed the resident that a response would be provided by 16 May 2022.
The landlord issued its stage two response on 5 May 2022. It said that:
1. While the resident’s telephone call with the officer on 9 March 2022 was not recorded, the officer had denied that they were forceful or unpleasant during the call. The landlord said that, by calling the resident a day earlier than agreed, the officer had good intentions, however it accepted that this had a negative impact on the resident.
2. The resident had asked to speak to a manager following the call on the 9 March 2022. The manager did not have availability on that day and called her on 10 March 2022 instead, however there was no answer. The manager was then on annual leave until 22 March 2022 but wrote to the resident on their return to the office. The landlord accepted that the resident should have been informed in writing on 10 March 2022 that the manager would respond to her following their return to work from leave.
3. The landlord could not give assurances to the resident that named officers would not contact her as it was a small team and sometimes further clarification was needed from a resident following a complaint. The landlord did agree that in these instances a face-to-face meeting could be arranged, and the resident could have a third-party present.
4. There was a misunderstanding between the manager and the resident regarding a telephone call. The manager believed that the resident had said that she would write to them, but the resident was expecting a follow-up telephone call.
5. The resident had made a number of complaints both by letter and telephone, with additional follow-up information supplied in relation to some of the complaints. This had meant that some complaints had not been escalated or escalated against the resident’s wishes, due to staff having difficulties identifying which complaint the correspondence or calls related to. The landlord proposed that a full case review be undertaken of all complaints to ensure that nothing had been missed.
Following the landlord’s stage two complaint response, it wrote to the resident on 30 May 2022 and stated that the volume and content of her communication with the landlord met the criteria for an unreasonable and persistent complainant as outlined in its complaint procedure. The letter contained guidance of how it expected the resident to communicate with it going forward. It also offered a meeting to discuss her case and to look at any further support she may need.
The resident was dissatisfied with the landlord’s response and referred her complaint to this Service in July 2022.

Assessment and findings

Scope of the investigation

The resident stated that the landlord had discriminated against her in her correspondence with the landlord dated 28 March 2022. This Service cannot assess discrimination issues in the way that a court can as the Ombudsman does not have the relevant expertise or authority to make such findings. However, it is expected that a landlord will at least respond to any such issues raised through its complaints procedure.
One of the points raised in the resident’s complaint relates to a meeting between the landlord and another tenant, that she had attended as a witness and as support to the tenant. The resident complained that the purpose of the meeting and the subject of the complaint had not been shared with her. As this meeting related to a formal complaint by another tenant, this aspect of the resident’s complaint will not be included as part of this investigation.
The resident has also raised, as part of her complaint, separate incidents that had occurred after the landlord’s internal complaints procedure had concluded. In the interest of fairness, the scope of this investigation is limited to the issues and incidents raised during the resident’s two formal complaints that are the subject of this investigation. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service.

The landlord’s response to the resident’s reports about the conduct of its staff

The resident had complained that one of the landlord’s officers had breached the resident’s confidentiality by informing her neighbour that noise monitoring equipment would be installed in her home. The landlord was obliged to provide the neighbour with notice that it would be investigating noise from their property over a three-month period. No finding has therefore been made in relation to this aspect of the complaint.
It is acknowledged that the resident was upset by the telephone call with the landlord’s officer on 9 March 2022. In the absence of a transcript or recording of the telephone call, however, it is not possible for this Service to make a finding as to its content. The landlord has stated that the officer called the resident back a day earlier than agreed, not realising that it would be inconvenient to the resident. It apologised for the misunderstanding, and it agreed to review its processes going forward. This demonstrated that the landlord sought to improve its service delivery. Overall, the inconvenience of this incident, while upsetting for the resident, was short–lived and had no lasting impact.
While the landlord conceded that a manager had not arranged a follow-up call after a discussion with the resident on 28 March 2022, this was based on the manager’s misunderstanding that the resident would be following up the telephone call with a letter. The landlord’s explanations and the apology it offered were therefore reasonable in the circumstances.
The resident was not informed on 10 March 2022 that her call would be returned by a manager on their return from leave on 22 March 2022. This was a service failure. The landlord had a responsibility to manage the resident’s expectations so that she could be reassured that matters were in hand. Its failure to do so would have added to the resident’s distress and frustration. As the landlord had upheld this aspect of the complaint, it would have been reasonable for it to offer the resident compensation. This is considered below.
Whether a complaint of ASB, or a counter-complaint, has been made against a resident, the landlord is required under its ASB policy to investigate the report. The ASB policy includes a procedure for anonymous complaints where the landlord ‘may take steps to determine if other residents are suffering problems or if there is any further evidence that can be obtained that may allow action to be taken without further contact from the anonymous complainant’
While the landlord was not permitted under its ASB policy to disclose the identity of the complainant to the resident without the complainant’s permission, the ASB procedure states that ‘should the victim(s) agree to the perpetrator being spoken to about the anti-social behaviour, the perpetrator should be interviewed”. As the landlord had disclosed to the resident that a complaint of harassment had been made against her, it should have made arrangements to interview her as part of the investigation to determine whether further steps were required. It is not evident from the information provided that this had happened. Instead, the allegation was disclosed to the resident during a meeting that had been scheduled to discuss her complaint. No further details about the allegation were provided and therefore the resident was denied the opportunity to offer her view of the situation. The landlord’s failure to follow its ASB procedure caused the resident distress and uncertainty.
The Ombudsman therefore finds that there was service failure in the conduct of the landlord’s staff and orders the landlord to pay the resident an amount of £100 to compensate her for the distress and inconvenience she has experienced.

The landlord’s complaint handling

This Service acknowledges that the resident had made a high number of complaints to the landlord both verbally and in writing and this had proved challenging for the landlord to manage. At the time of the complaint, the resident had said that she was waiting for a response from the landlord in relation to 14 additional complaints. The resident had also sent the landlord follow-up correspondence relating to some of the different complaints she had made. Further, some of the information in these complaints overlapped with previous complaints.
Due to the volume of communication from the resident, the landlord’s staff had some difficulty in identifying whether correspondence related to a new or existing complaint, and at which stage each complaint was at. Administering the high number of complaints also had resource implications for a small team. The landlord has since undertaken a review of the resident’s complaints and has confirmed to the resident in writing what stage each complaint was at, and what the next steps were for the resident if she wished to escalate the matter.
Some of the landlord’s complaint responses were subject to delays, although the landlord had acted in accordance with its policy by agreeing an extension to the target response dates with the resident in advance. While these delays were not excessive and the impact on the resident minimal, it would have been appropriate for the landlord to acknowledge these delays in its stage one or two complaint response.
The landlord neglected to address some points raised by the resident in her stage one and stage two complaints regarding compliance with its complaints procedure and recording of the complaint. This was a failing. Complaints provide opportunity to learn, to improve relationships and identify and address service failures. While it is acknowledged that the resident had made a high number of complaints during this time, it was open to the landlord to set the parameters for contact in line with its complaints procedure.
To compensate the resident for these failures in service delivery, the landlord is ordered to pay her £100. It is noted, however, that in its letter of 30 May 2022, the landlord did propose a meeting with the resident to facilitate a more effective complaint handling process going forward.

Determination (decision)

In accordance with paragraph 42(l) of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s response to her reports of ASB is out of the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in its response to the resident’s reports about the conduct of its staff.
In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in its complaint handling.

Reasons

The landlord had failed to manage the resident’s expectations by not giving an indication of when a call would be returned. It did not follow its ASB procedure in responding to a report of harassment, which caused the resident distress.
It is acknowledged that the volume of complaint correspondence from the resident impacted on the landlord’s resources considerably. Notwithstanding this, there were service failings in its complaints handling including missed deadlines and incorrect recording of the complaint.

Orders and recommendations

Orders

Within four weeks of the date of this report, the landlord is to:
1. Pay the resident an amount of £200 which is comprised of:
  1. £100 to compensate her for distress and inconvenience in relation to her complaint about staff conduct.
  2. £100 to compensate her for time and trouble regarding the landlord’s complaint handling failures.
2. Confirm with this Service that payment has been made.