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Swindon Borough Council (201909675)

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REPORT

COMPLAINT 201909675

Swindon Borough Council

15 March 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. This Service will investigate the resident’s complaints regarding:
    1. The landlord’s response to her reports of ASB; and
    2. Its removal of the additional tenancy clauses (ATC).
  2. This Service will also consider the landlord’s handling of the resident’s complaint.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. Paragraph 39(i) of the Housing Ombudsman Scheme directs that the Ombudsman is unable to consider matters which would be more effectively or fairly dealt with by the courts, tribunal or via another procedure. The Ombudsman cannot make binding legal decisions in circumstances of alleged discrimination, which is one of the complaints which the resident has brought to this Service. It is recommended that the resident seeks independent legal advice on this aspect of her complaint should she wish to pursue the matter further. This aspect of the resident’s complaint falls outside of the Ombudsman’s jurisdiction to consider in this investigation. 
  3. In addition, it is outside of the Ombudsman’s jurisdiction to consider the fairness of the ATC for the same reasons, but it will consider the landlord’s administration of these.

Background

  1. The resident is a tenant of a one-bed bungalow and is recorded as vulnerable.

Policies and Procedures

  1. The landlord’s ASB policy sets out that it is required, where appropriate, to record and thoroughly investigate ASB reports, offer to visit complainants to agree an action plan and issue ASB log sheets. It will attempt to contact complainants within 24 or 48 hours, depending on the urgency of the report. It will consider a range of approaches to tackle ASB, including mediation.
  2. The resident is prohibited from perpetrating antisocial behaviour in accordance with her tenancy agreement.
  3. The landlord’s complaints policy sets out that residents will receive a response to their stage one complaint within 10 working days; there is no timeframe provided for a stage two response.

Summary of events

  1. The resident submitted a formal complaint to the landlord on 18 October 2019. The points of her complaint relevant to this investigation are:
    1. She had been reporting ASB for “over a decade” to the landlord but it had not taken her concerns seriously or taken any action to resolve the reported ASB – the ASB logs that she had completed had been dismissed and no home visits were offered;
    2. “Unconfirmed and unsubstantiated complaints” had been made against her without any evidence; and
    3. On one occasion in January 2019, she was “misled” as to the purpose of a meeting with a Housing Officer who pressured her into signing “potentially unfair tenancy clauses.”
  2. The landlord responded on 13 November as follows:
    1. The Housing Officer had confirmed that the ATC were agreed by the resident and her advocate prior to signing, and could be reviewed after 12 months by request;
    2. The ASB logs provided by the resident were investigated and, where “necessary, appropriate action was taken.” Landlord officers had a “very difficult role in balancing and mediating in relation to complaints.” It stated it would investigate and take appropriate action in future complaints; and
    3. It was sorry that the resident felt let down.
  3. The resident responded to the landlord in a letter of 30 December. She stated that her own family members as well as her independent advocate had witnessed the ASB, and that police had spoken to the relevant individuals “on several occasions.” The resident stated she was “led to believe” that one of her neighbours had received a warning for her “intimidating behaviour.” She also stated that she remained unclear as to the justification for the ATC. The landlord stated that it did not receive this letter, and so the resident emailed it a copy on 16 January 2020.
  4. This Service has seen a copy of an undated letter sent by the landlord to the resident’s neighbour regarding her dog. It has also in the past sent a letter to all residents regarding their dogs.
  5. The landlord sent further correspondence to the resident regarding her complaint on 29 January. It stated it would be happy to investigate audio recordings of reported ASB. It also confirmed that the resident could now request a review of the ATC. It suggested that a meeting be arranged to discuss this. The resident responded on 31 January insisting on escalating her complaint, stating that she did not believe a meeting would “progress the matter significantly.”
  6. The Head of Customer Services again wrote to the resident on 4 February seeking to support her in resolving her complaint. He offered to attend the scheduled meeting that was to take place regarding the ATC. He also advised of the escalation procedure for her complaint should she remain dissatisfied.
  7. The resident met with the landlord on 13 February regarding the ATC. The landlord followed up with an email the next day in which it confirmed that it had taken into account that the resident had conducted her current tenancy in a good manner and it had decided to remove the ATC from 1 March 2020.
  8. On 25 February the landlord wrote again confirming that it would send written confirmation of the removal of the ATC by 6 March.
  9. The evidence shows that the landlord provided conflicting advice to the resident regarding the duration of the ATC on the resident’s files – on one occasion it stated that it would be on file for a minimum of one year before review, the other that there was no minimum time period before which it could be reviewed.
  10. When the resident challenged the landlord’s policy of the minimum time period and sought clarification on 28 February, the landlord responded to clarify that the minimum period was “just our normal operating procedure as opposed to written rule.” It apologised for any confusion caused.
  11. Written confirmation of removal of the ATC in their entirety was provided on 6 March.
  12. The landlord responded with its formal stage two response on 5 May 2020. It stated that:
    1. Cameras – the cameras were running and the relevant footage (regarding the reported ASB) was seen but by the time the resident requested to view the footage it had been overwritten in line with the landlord’s CCTV policy;
    2. Mediation – this was offered to the resident but declined by her at the time;
    3. Consideration of evidence – all evidence was considered objectively though the landlord appreciated that the outcome was not what the resident wanted. The landlord had made “many attempts to support” the resident; and
    4. ATC – it had previously responded to her concerns regarding the duration of the ATC and reiterated that the usual duration for ATC is the length of the tenancy or on review after one year at residents’ request, as occurred in this case. 
  13. The resident emailed the landlord on 19 May stating that she felt her efforts to work constructively with it had been “pointless” and that she had “no choice but to pursue legal action.” The landlord responded on 21 May stating that it was sorry she felt the way she did, and it felt it had listened to her feedback, but that there appeared to be nothing more it could do to resolve the issues to her satisfaction. It advised of the possibility of referring to Ombudsman. It also confirmed it had received no complaints against her or her family since the beginning of the tenancy in her current property.
  14. On 14 September the landlord apologised to the resident for “any confusion caused by not advising (the resident) that (she) had the right to take (her) complaint to the complaints panel previously.”
  15. The landlord wrote to the resident on 19 January 2021 offering to visit her to discuss next steps.
  16. The resident stated on 10 February 2021 that no one from the landlord had been in contact with her to discuss her current concerns or answer her questions and she would like to see a more proactive approach to the ASB she had been reporting.

Assessment and findings

Response to ASB

  1. The landlord does not dispute its obligations in relation to the handling of ASB reports. It is clear that it took some action in response to the resident’s reports – it sent a letter to her neighbour and offered mediation. These responses were appropriate, however the records provided by the landlord do not confirm that a thorough investigation took place, or that an action plan was drawn up. In the absence of complete ASB records, the Ombudsman is unable to conclude that the landlord took adequate steps to investigate the ASB reported by the resident. The landlord is reminded that good record keeping is vital to evidence the action it has taken and failure to keep adequate records indicates that the landlord’s ASB processes are not operating effectively.
  2. The resident reports that the landlord has not visited her as it offered to do to discuss her current concerns. The landlord is expected to comply with its obligations as set out under its ASB policy, including appropriately recording and considering reports and taking action where necessary. The landlord is also expected to take into consideration the resident’s vulnerabilities. The landlord’s failure to evidence that it did so amounts to service failure.

Removal of ATC

  1. It was not appropriate that the resident was unaware of, and was provided conflicting advice on, the duration of the ATC. If the landlord does not have a written policy regarding this, its internal operating procedure should be clear and communicated accurately to residents when appropriate. It apologised to the resident for any confusion caused as a result of its conflicting advice.
  2. It acted reasonably in considering that the resident had conducted her tenancy in a good manner and in agreeing to remove the ATC as a result.
  3. Although it did provide the resident with conflicting advice regarding the duration of the ATC, no material detriment was suffered by her as it apologised for the confusion and removed the ATC on the year review. The Ombudsman therefore considers that the landlord demonstrated service failure but made adequate redress for this.

Complaint handling

  1. The landlord delayed in responding to the resident at both stage one and two. It is acknowledged that after the resident had requested escalation of her complaint, the landlord held a meeting with her and continued to communicate with her regarding the ATC. It did not, however, provide a formal response until four months later and there is no evidence to suggest that it advised the resident of when she might receive a formal response. This is not in line with its policy which requires a stage one response within 10 working days. It is unreasonable that the resident was not responded to promptly throughout the complaints process. Whilst its policy does not set out a timescale for responses to stage two complaints, it failed to provide this within a reasonable time.
  2. It also failed to advise the resident at first instance that she had the right to refer her complaint to the complaints panel, as it was expected to have done. The Ombudsman therefore considers that the landlord demonstrated service failure in its complaint handling.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the resident’s reports of ASB.
  2. In accordance with paragraph 55(b) of the Scheme, service failure was demonstrated in the landlord’s handling of the removal of the ATC, but it offered a satisfactory resolution to the complaint, amounting to reasonable redress.
  3. In accordance with paragraph 54 of the Scheme, there was service failure in the landlord’s complaints handling.

Reasons

  1. Service failure is demonstrated in the landlord’s failure to show that it took necessary steps in line with its ASB policy.
  2. Whilst service failure was identified in the conflicting advice given to the resident regarding the ATC, redress was made for this in the landlord’s apology, review of  the ATCs after a year and subsequent removal of the ATC.
  3. Service failure was demonstrated in the landlord’s delayed responses to the resident’s complaints as well as its omission in advising her of her right to refer her complaint to the panel.

Orders and recommendations

Orders

  1. Within 28 days of the date of this report and confirming such to the Ombudsman, the landlord is ordered to:
    1. Pay £200 to the resident in compensation for the service failures in its ASB response;
    2. Pay £50 to the resident in compensation for the service failures in its complaints handling;
    3. Discuss with the resident her outstanding concerns regarding ASB and act appropriately in accordance with its policies and write to her confirming what action, if any, it intends to take in response to her outstanding concerns.
    4. Carry out staff training on effective complaint handling in line with its own policy and this Service’s complaint handling code: https://www.housing-ombudsman.org.uk/landlords-info/complaint-handling-code/.

Recommendations

  1. The landlord is recommended to ensure that the internal operating procedure regarding the ATC is clear and that all staff are appropriately trained in how to handle similar requests for review of ATCs.              

It is recommended that the landlord comply with the above recommendation within four weeks from the date of this report.