Wakefield And District Housing Limited (202006961)

REPORT

COMPLAINT 202006961

Wakefield And District Housing Limited

13 October 2021(Amended on Review)

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 landlord’s refusal to consider the resident’s complaint raised on 27 May 2020 regarding the conduct of a member of staff who handled his previous complaint.
   2. The landlord’s rejection of the resident’s 21 July 2020 complaint on the basis that it was vexatious.

Background and Summary of Events

2. The resident is an assured tenant and the property is a one-bedroom bungalow.
3. The resident raised a formal complaint during a telephone conversation with the landlord on 27 May 2020 regarding the conduct of the senior member of staff who had dealt with his previous 15 April 2020 complaint.
4. He complained about the management of his complaint and said that there had been inaccuracies and a failure to address all of the issues in the landlord’s complaint response of 29 April 2020. It was also about the senior member of staff’s delay in retuning his calls and being told during the call on 12 May 2020 that he must put his complaint in writing despite him having no access to a PC. He also complained about being interrupted during the phone call and “lies”.
5. Evidence of the parties’ communications between 15 April 2020 and 27 May 2020 show that phone calls between the resident and landlord to establish the scope of this complaint, took place on 15, 20, 29 April and on 12, 15, 18 and 21 May 2020. Further, there were three different attempts by the landlord to issue a stage one acknowledgement letter before the resident was satisfied that it had correctly captured the scope of his complaint raised over the phone on 15 April 2020.
6. On 1 June 2020, the landlord wrote to the resident advising that in accordance with Section 2.8 of its Complaints and Compensation Policy (complaints policy), it reserved the right to deal with complaints about personnel in a different way to that outlined in its policy. It said the conduct of employees is investigated internally however, due to the requirements of data protection, he will not be advised of the outcome. It also said it would not consider his complaint about the management of his most recent complaint, because, in accordance with Section 2.7 of its complaints policy, it reserves the right to restrict access to the complaints process when complaints are being pursued unreasonably.
7. The landlord also said that over the last twelve months he had made several complaints against employees dealing with his complaints. The landlord said it considered these to be vexatious in nature and as such the resident’s behaviour would now be considered under its Unacceptable Behaviour Protocol and this may result in restrictions being placed on his future contact with it. It advised if he remained dissatisfied, he could ask the Housing Ombudsman Service (the Ombudsman), to look at his complaint.
8. The resident replied to the landlord by email on 3 June 2020 in which he emphasised the validity of his complaint against the senior member of staff and claimed it was more convenient for the landlord to consider his complaint about its staff member to be vexatious rather than “getting to the bottom of” of his complaint. He also said many of his complaints made over the past 12 months mentioned by the landlord, had been upheld by the landlord when investigated. He said the landlord’s bullying behaviour “is driving him to suicide”.
9. On 4 June 2020, the landlord wrote to the resident advising that further to its advice given in its 1 June 2020 letter, it would now consider his recent communications and behaviour under its Unacceptable Behaviour Protocol. It stated it will notify him of the outcome and any agreed restrictions in due course.
10. On 16 June 2020, the landlord wrote to the resident regarding his future communication with it. It advised following a review of his recent communications with it, his behaviour has been found to be unacceptable. This behaviour included:
    1. Use of derogatory remarks that cause employees to feel offended, afraid, threatened, harassed or abused. 
    2. Language which insults or degrades employees.
    3. Use of inflammatory statements or making allegations against individuals without evidence to support them. 
    4. Electronic recording of meetings or conversations, making employees feel intimidated.
    5. Making repeated calls and demanding responses within unreasonable timescales.
    6. Insisting on speaking to employees’ managers and making vexatious complaints against individual employees dealing with his complaints.
    7. Repeatedly changing the substance of the complaint or raising issues with the wording used when the meaning is the same.
    8. Refusal to accept decisions made in relation to an issue or a complaint.
    9. Refusal to accept explanations provided.
    10. Taking up a disproportionate amount of time and resources.
11. It advised his communications had demonstrated a pattern of behaviour in line with its Unacceptable Behaviour Protocol. It said in view of this, any future expressions of dissatisfaction or complaints must be made in writing or by email to Customer Relations setting out the details of the complaint and the resolution required although general enquiries and repair requests should be reported in the usual way. It informed the resident this was its final decision, and this matter could not be considered through its complaints process as it does not meet the definition of a complaint but said if he is dissatisfied with its decision to restrict communication with it, he can ask the Ombudsman to consider the action it had taken.
12. The landlord’s call notes show that on 27 June 2020 the landlord received a complaint from a neighbour’ s daughter alleging the resident had cut up some plants and then filmed her mother and made comments towards her.
13. The resident made a complaint to the landlord on 29 June 2020 regarding an incident on 27 June 2020 involving his neighbour which he said was antisocial behaviour. The landlord’s call notes show the resident advised his neighbour had fastening something onto the hedge inside the boundary and when he asked her to remove it, she abused him and told him it was her property.
14. The landlord called the resident on 3 July 2020 when the resident reiterated that his neighbour had attached netting to the hedge within his boundary. The resident also advised his neighbour was cutting something from the hedge and was brandishing scissors at him shouting abuse. He said his neighbour also shouts abuse as she walks past the front of his property.
15. On 6 July 2020, the landlord called the resident to discuss the incident. During this conversation the landlord advised it had received a complaint about the same incident from the resident’s neighbour who had alleged he had deliberately cut a plant in their neighbour’s garden and then proceeded to film them and made comments towards them when they challenged him.
16. The resident called the landlord on 7 July 2020 advising he wanted to cut his hedge and wanted to know if he could do this. The landlord agreed to add this note to its records and advised it would be in touch.
17. On 8 July 2020, the landlord received a complaint from the resident’s neighbour alleging the resident entered their neighbour’s garden and removed wired netting that she had put up to protect her plants after the resident had previously destroyed one. She said the resident had left the netting thrown on her garden and also left her gate wide open.
18. The landlord sent the resident a formal tenancy breach warning letter dated 15 July 2020 referencing a complaint it had received about his behaviour on 27 June 2020 alleging he had deliberately cut a plant in the neighbour garden. It referenced 4 allegations concerning his neighbours:
    1. Trespassing over his neighbour’s garden and refusing to leave when asked to do so;
    2. An allegation that he purposefully scratched a neighbour’ visitors’ car;
    3. Following his neighbour when they leave their property;
    4. Video recording his neighbours without their consent.
19. It also referred to allegations about recording and filming its employees without their consent. It said reviewing these complaints, it is of the opinion that he has persistently behaved in a manner that has deliberately intended to intimate and harass his neighbours. It referenced a further complaint received on 8 July 2020 alleging he entered his neighbour’s garden and removed netting placed over a hedge. It said he had already discussed this matter with a member of staff who concluded it was not a tenancy breach. However, it stated that the act of entering his neighbour’s garden to cut back the netting and then leaving it strewn across her garden is not considered reasonable and is another example of intimidating behaviour.
20. The landlord referenced Section D of the tenancy agreement and said it regards the persistent acts of antisocial and intimidating behaviour to be a breach of his tenancy conditions and advise the letter was a formal warning against his tenancy. It stated if it received further complaints of this nature, it would consider starting legal proceedings that could lead to the loss of his tenancy or an injunction order to prevent further acts of harassment towards his neighbours. It stated if he wished to discuss this further, to contact a named member of staff however the letter subsequently stated that in line with its letter of 16 June 2020, as he has been deemed an unacceptable complainant, all future expressions of dissatisfaction or complaints must be in writing or by email to Customer Relations setting out the details of his complaint and the resolution he required.
21. On 21 July 2020, the resident sent a complaint letter to the landlord’s Customer Relations department stating the letter was a stage one complaint against the member of staff who wrote the tenancy breach warning letter of 15 July 2020. In his letter the resident set out seven complaints:
    1. He has never been on his neighbour’s property and he requested proof from the landlord to support the claim that he had.
    2. Regarding the allegation he scratched a neighbour’s car, he requests proof from the landlord to support this allegation.
    3. Regarding the allegation that he followed his neighbour, he is requesting more information and evidence to support this allegation.
    4. Regarding video recording his neighbour(s) he stated there is no expectation of privacy outside, in public. He said where a neighbour is lying, being verbally abusive and damaging his property, video recording cannot be classed as harassing or recording without anyone’s consent.
    5. Regarding allegation that he recorded its staff without their consent, this was a “lie” and he requested proof from the landlord that he had recorded anyone without letting them know first.
    6. Regarding the allegation that he entered his neighbour’s garden, cut back netting and then left it strewn across her garden, he requests proof from the landlord to support this allegation.
    7. The resident also complained that his complaint raised about the incident on 27 June 2020 was that the neighbour went over the boundary line and tied something to his property and verbally abused him. They also verbally abused him and threatened him from the street.  He complained that his version of the incident was not reflected in its letter of 15 July 2020.
22. The resident listed nine resolutions he sought to his complaint including the for the staff member who wrote the letter to be “reprimanded”, to stop using “fake” reports against him and to investigate complaint “fully” and “professionally” before sending him letter threatening letters.
23. The landlord sent the resident’s neighbour a nuisance complaint letter in response to the resident’s counter antisocial behaviour report.
24. The landlord sent the resident a response dated 24 July 2020 in which it stated it considered the basis of his complaint and the resolutions requested are deemed vexatious. It referred to Section 2.7 of its complaints policy: ‘we reserve the right to deal with complaints differently, or restrict access to the complaints process, when a complaint is being pursued unreasonably or the complainant’s behaviour is deemed to be unreasonable or unacceptable’.  It advised that on this basis it will not be progressing his complaint about its letter of 15 July 2020, concerning allegations made by neighbours about his behaviour.
25. On 26 August 2020, the landlord wrote to the resident echoing the contents of its 15 and 24 July 2020 letters.
26. In his more recent communications with the Ombudsman the resident:
    1. reiterated the points made in his 27 May 2020 complaint to the landlord and he also told us that the senior member of staff suggested during the 12 May 2020 call that he should get someone to help him even if it meant visiting him at home despite Covid-19 restrictions in place at the time although he said the landlord then retracted this in the same conversation.
    2. Said that the high number of communications following his 15 April 2020 was necessitated by the landlord’s failure to correctly capture his complaint verbally advised to it.
    3. Denied the “accusations” made by the landlord in its 15 July 2020 letter and said they have not properly or fully investigated reports by his neighbour. Nor had it provided any evidence to support its “accusations” when he had asked for it. He said the landlord had believed the false allegations even though he had video evidence proving otherwise. He reiterated that he records/videos for his own “safety and protection” due to previous false antisocial behaviour reports made by neighbours.
    4. Said he has felt harassed by false accusations and the landlord has ignored the impact on his mental health when he advised the landlord of this.

Policies and Procedures

27. Section 4.12 of its ASB policy states it may consider it appropriate to refer individuals or families to other agencies, such as Environmental Health, Family Services, Victim Support or Community Mental Health Services through its Wellbeing Team.
28. Section 2.7 of the landlord’s complaints policy applicable at the time of the complaint states the landlord has: “the right to deal with complaints differently, or restrict access to the complaints process, when a complaint is being pursued unreasonably or the complainant’s behaviour is deemed unreasonable or unacceptable”.
29. Section 2.8 states it reserves the right to deal with complaints in a different way to that outlined in this policy, when they concern the terms of employment or other personnel issues. It will notify customers of its decision and the reason for this.
30. Under the heading ‘Unreasonable Complaints’ in the landlord’s Complaints and Compliment Procedure (complaints procedure), it states the landlord: “may deal with complaints differently, or restrict access to the complaints process, where a customer is pursuing a complaint in an unreasonable manner, or their behaviour is deemed to be unreasonable”.
31. The landlord’s Unacceptable Behaviour Protocol (UBP) states the behaviour or actions of an individual can make it difficult for it to deal with their contact or complaints. The protocol ensures it deals fairly, consistently and appropriately with these individuals while managing their behaviour, so it does not impact on resources, employee wellbeing, other customers, contractors or agents working on its behalf or Board members.
32. It sets out behaviours it deems to be unacceptable including; repeatedly demanding responses within unreasonable timescales; insisting on seeing or speaking to particular employees; frequent contact, which includes but is not limited to phone calls, emails, letters, social media or interactive posts; repeatedly changing the substance of the complaint or raising unrelated concerns; refusal to accept decisions made in relation to an issue or a complaint; taking up a disproportionate amount of time or resources; persistently using different ways and means to contact us about the same issue(s) and; refusal to accept explanations provided.
33. Restrictions that may be considered include: a nominated single named point of contact; restrictions on individual’s access or contact with it and restricting the issues it will correspond on.

Assessment and findings

The landlord’s refusal to consider the resident’s complaint raised on 27 May 2020

34. The resident’s 27 May 2020 complaint concerned the conduct of a member of staff who handled his previous complaint and their management of this complaint. The landlord’s complaints policy makes clear that it is not required deal with complaints raised about employees via its complaints procedure. Therefore, the landlord was entitled to deal with this complaint outside of its complaints process and it was acting in line with its policy when, in its 1 June 2020 response to the resident, it informed him of its decision to deal with this complaint internally as it concerned the conduct of one of its employees. As it referenced the relevant sections of its policy and explained to the resident the reason why he would not be advised of the outcome, this aspect of its 1 June 2020 response was reasonable.
35. In the same response the landlord also advised that because over the last twelve months the resident had made several complaints against employees dealing with his complaints, his behaviour would now be considered under its UBP. It advised this was because it considered such complaints about staff to be vexatious in nature. In his 3 June 2020 email, the resident strongly disputed that his complaints were vexatious and emphasised the validity of his latest complaint against the member of staff. He also said many of these complaints had been upheld in the past, included regarding the issue of him video recording staff which the landlord had accepted he always told staff he was doing so when they visited his home.
36. In its subsequent response of 16 June 2020, the landlord confirmed it was applying its UBP going forward and then cited multiple instances of what it deemed to be unreasonable behaviour by the resident. It is evident that some of these examples of behaviour dated back to at least 2019 and given that the resident disputed the alleged behaviours with the landlord at the time, the landlord needs to be mindful about being very clear about how the incidents, when considered overall, demonstrate a pattern of regular and ongoing behaviour that would entitle it to apply its UBP. For example, including dates of the referenced incidents may have made this point clearer.
37. However, the landlord’s response cited taking up a disproportionate amount of time and resources as a reason for applying a restriction to the resident’s contact and complaints. This is a reason stated in its UBP. It is evident that between 15 April and 27 May 2020, there were multiple verbal and written communications between the landlord and resident. This was because there was disagreement about the scope of the resident’s 15 April 2020 complaint resulting in multiple attempts by the landlord to correctly capture the resident’s complaint as expressed during phone calls before this was agreed by the resident. The resident’s 27 May 2020 complaint had been about the management of his complaint, and it is evident this partly led to the landlord deciding to invoke its UBP.
38. Having reviewed this correspondence, it is evident that the landlord made reasonable attempts to understand the resident’s complaint by speaking to him on the phone on at least five occasions and issuing various amended versions of the same acknowledgement letter. Given the inevitable amount of time spent on this, on balance it was reasonable for the landlord to then require any future expressions of dissatisfaction or complaints by the resident to be in writing or by email addressed to Customer Relations. This action was in accordance with its Unacceptable Behaviour Protocol.
39. Furthermore, it is reasonable for the landlord to include ‘taking up a disproportionate amount of time and resources’ as a reason for applying a restriction to the resident’s contact and complaints because landlords do not have infinite resources and are responsible for high numbers of tenancies. It has a duty to balance the needs of one resident against those of another which may limit the time it can spend on one particular complaint.
40. It is noted that in the resident’s 3 June 2020 communication to the landlord, the resident expressed suicidal thoughts due to the situation he was in. It is reasonable to expect that a landlord to consider if a resident requires referral to appropriate support service(s) in such a situation. There is no evidence of the landlord acknowledging the resident’s comments in its subsequent responses or signposting him to an appropriate service for example its Wellbeing Team; this is a service mentioned in the landlord’s ASB policy. Therefore, a recommendation has been included below.

The landlord’s rejection of the resident’s 21 July 2020 complaint

41. Section 2.7 of the landlord’s complaints policy states the landlord has: “the right to deal with complaints differently, or restrict access to the complaints process, when a complaint is being pursued unreasonably or the complainant’s behaviour is deemed unreasonable or unacceptable”.
42. The resident sent his 21 July 2020 stage one complaint to the landlord following a tenancy breach warning letter that he received from it dated 15 July 2020. In his complaint the resident said the ASB reports referred to by the landlord in its warning letter were false and that the landlord had never provided any evidence to substantiate such reports when he had challenged these in the past. The resident raised his 21 July 2020 complaint via the method of contact the landlord had previously specified under its UBP. It is noted that the resident had again framed his complaint in a way to suggest it was against the member of staff who signed the letter however it is clear that the substance of the resident’s complaint related to the basis upon which the landlord had sent him a formal tenancy warning letter.
43. The landlord’s letter included recent ASB reports it had received from his neighbour and her daughter on 27 June 2020 and 8 July 2020. It also referenced that it was a formal warning against the resident’s tenancy and that it would consider starting legal proceedings that could lead to the loss of his tenancy if it received any further complaints of this nature. In this situation it is reasonable to expect that the resident is afforded an opportunity to dispute the content of the letter.  However, Section 1 of the landlord’s UBP policy states that ‘the behaviour or actions of an individual can make it difficult for [the landlord] to deal with their contact or complaints.’ Although no alternative process was provided for the consideration of the new incidents, the landlord was within its rights in deciding not to consider a complaint. This was one of the consequences of the UBP and this Service has not found that the landlord acted inappropriately in implementing the protocol.  
44. In its 24 July 2020 letter, the landlord refused to register the resident’s stage one complaint raised in response to the tenancy breach warning letter received. Its letter was brief and did not sufficiently or clearly explain the reasons for refusing to progress the resident’s complaint, only referencing section 2.7 of its complaints policy. Nonetheless, the evidence provided to this Service by both parties indicate that the landlord had written a tenancy caution letter to the resident on 16 June 2020 which preceded the new incidents. Thus, its decision not to consider a further complaint was based on its consideration of the resident’s behaviour prior to the new issues.
45. This Service concludes that the landlord adhered to its UBP and Complaints policies in exercising its rights not to accept a complaint from the resident. While this Service agrees that the rejection of his complaint was warranted, it has included a recommendation for the landlord to consider providing an informal response which addresses issues raised by residents while its UBP is in place.
46. Determination (decision)
47. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord when it refused to consider the resident’s complaint raised about the conduct of a member of staff who handled his previous complaint.
48. In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord when it rejected the resident’s 21 July 2020 complaint on the basis that it was vexatious.

Reasons

49. The landlord had a right to deal with the resident’s complaint raised about the conduct of its staff outside of its formal complaint’s procedure. The landlord was also entitled under its UBP to restrict contact and complaints from the resident after finding that dealing with his complaints took up a disproportionate amount of time and resources.
50. The UBP specifies that a resident’s behaviour could result in barriers to contact and complaints handling by the landlord and its complaints policy states that it can decide not to consider a complaint when a resident’s behaviour is found to be vexatious. It acted within its policy provisions in rejecting the resident’s complaint.

Recommendation

51. The Ombudsman recommends that the landlord:
    1. Ensures its staff are appropriately trained so as to respond to residents’ expressions of suicidal thoughts in accordance with its relevant policies. 
    2. Considers providing an informal response which addresses issues raised by residents while its UBP is in place. This should be outside its complaints process and could serve as an avenue for dealing with matters without the option of escalation unless it is found that this is warranted.