Wigan Metropolitan Borough Council (202207109)

REPORT

COMPLAINT 202207109

Wigan Metropolitan Borough Council

31 January 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s:
1. Handling of the resident’s reports about antisocial behaviour (ASB) from a neighbour.
2. Handling of the resident’s request for a mutual exchange and the information provided.
The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident is a secure tenant. The resident has post-traumatic stress disorder (PTSD).
The resident first reported a dispute with her neighbour due to the resident’s cat digging in her neighbour’s garden in April 2021. The reports escalated to alleged abuse and destruction of property, and both submitted reports to the police. The landlord responded by liaising with the police, completing fact-finding sheets, and speaking with both parties. It provided both the resident and neighbour with diary sheets to report any further incidents and advised them not to speak to each other. It said that where possible it would try to resolve things amicably without taking enforcement proceedings. It said once all options were exhausted it would look to take further action.
The resident contacted the landlord on 15 June 2021 to say that the mutual exchange property she was interested in had fallen through because of her rent arrears. She said she felt she was not getting any support. Further reports were then made to the landlord on 17 June 2021 and the neighbour was arrested for allegedly “keying” the resident’s car and attacking her. The local councillor contacted the landlord on 19 June 2021 to ask for support in resolving the dispute between the resident and neighbour.
Between 28 June 2021 and 28 July 2021, the landlord had a meeting with the resident and suggested mediation. It discussed her housing arrangement and completed a welfare form. It enquired about her mental health and advised her to avoid contact with the neighbour. It also made a referral to children’s services for support. The landlord then conducted a joint meeting with the police and the neighbour. The police encouraged no further contact with the resident. The landlord told the resident that other than applying for welfare points and contacting homefinder regarding the house swap, there was not much more it could do to assist her with a move.
In an email to the housing registering team on 25 September 2021 the resident said the neighbour had thrown bleach/harmful liquid at her and her son. She said she had reported it to the police and landlord, with no follow up. She said she was living under threat and needed to be relocated. The resident submitted an ASB case review form on 28 September 2021.
On 9 November 2021 the resident submitted a formal complaint via a telephone call with the landlord. She said that she was dissatisfied with the level of communication from the ASB team in relation to her reports. She said she was also dissatisfied with the level of communication from the council’s letting team.
In its stage 1 response on 3 December 2021, the landlord stated that it had reviewed the communication from 3 April 2021 and there was good communication throughout the case. It did not uphold that element of the case. It provided advice on her housing options. It said that without further information from the resident it was unable to determine a failure to respond to her enquiries. The resident was provided with the outcome of the ASB review on 6 December 2021.
The resident was dissatisfied with both the outcome of the review and the stage 1 response. She escalated her complaint following further reports to the landlord in May 2022 and again in July 2022. The landlord provided its stage 2 response on 1 September 2022. It said:
1. The handling of the ASB case was addressed in the ASB case review so it would not revisit it. It said it noted there was good communication between the resident and her case officer, except for a delay in September 2021, April 2022, and July 2022. It said it was satisfied that the resident’s concerns were taken into consideration and there was liaison with the police.
2. The resident felt the officer had lied in the ASB case review report when they commented that residents had no concerns. The landlord said that the report stated that most residents did not have any issues to report. It said it acknowledged information had been provided regarding historic issues, but it was not deemed necessary to take any further enforcement action.
3. It said it advised the resident to register on the mutual exchange register in April 2021. It confirmed that a mutual exchange would not be allowed if either party was in rent arrears, which was the case when she initially expressed interest.
4. It said it was satisfied that the original complaint was appropriately investigated and responded to. It said that when she had raised concerns, they had been considered, and appropriate action was taken.
The resident was unhappy with the stage 2 response. She disagreed that the landlord had all the evidence to complete its investigation as she felt the area canvassing was dishonestly reported. She said the issues were ongoing and communication had not improved since it was raised in the ASB case review meeting.

Assessment and findings

Scope of the investigation.

The resident has referred to her health and that the landlord’s handling of the antisocial behaviour could have had an impact on this. It is beyond the remit of the Ombudsman to determine whether there would have been a direct link between the actions or lack of action by the landlord and any subsequent impact on the resident’s health. The resident may wish to seek legal advice on making a personal injury claim if she wishes to pursue this. Although we cannot assess the impact of the landlord’s actions on the resident’s health, consideration has been given to the distress and inconvenience which the resident experienced as a result of the situation.

The landlord’s handling of the reports about antisocial behaviour (ASB) from a neighbour.

ASB cases involving allegations and counter allegations over an extended period, sometimes with little or no corroborating evidence, can be among the most difficult for a landlord to resolve. That difficulty is not the fault of any party, but it is important that the Ombudsman’s assessment of the landlord’s actions recognises this fact.
Following ASB reports, it is necessary for the landlord to respond in accordance with its ASB policies. This should include assessing risks, discussing cases with those involved, and using available tools to discourage ASB. The landlord should consider vulnerability and carry out impact assessments, and deal with reports in a proportionate and appropriate manner. It should consider its obligation as a landlord to treat allegations from all its customers in a consistent and evidence-led way.
The landlord’s ASB policy states that ASB may or may not constitute criminal activity. It states that a key determinant in deciding whether behaviour is antisocial or not will be the impact of the behaviour on others, but said it is not the only relevant consideration. It provides examples which may amount to ASB and this includes aggressive and threatening language and behaviour. The policy outlines informal interventions the landlord can consider which includes warnings, acceptable behaviour contracts, and mediation.
The tenancy agreement states that any person residing in the property must not “engage in conduct causing or likely to cause a nuisance or annoyance to any person or do anything which interferes with the peace, comfort or convenience of any person, residing, occupying, visiting or otherwise engaging in a lawful activity in the property or in the locality of the property”.
The resident reported ASB from her neighbour in April 2021 and the initial response from the landlord followed its ASB policy. It completed a fact-finding sheet, researched previous allegations against the neighbour, met with the resident, and agreed a course of action. The resident was provided with diary sheets to gather further evidence and the landlord advised her to reach out to appropriate support services. The landlord then liaised with the police regarding the incidents reported and arranged to visit the neighbour. It is in the Ombudsman’s view that these actions were reasonable to take at the time.
When the resident reported further ASB on 17 June 2021 the landlord did not respond until 28 June 2021 as the caseworker had been on sick leave. It contacted the police for an update and arranged to meet with both the resident and the neighbour. In the meeting with the resident, it was appropriate to provide the neighbour’s version of events and for the landlord to remain neutral in doing so, in the absence of witnesses. It was positive that it enquired about the resident’s mental health and confirmed that she was accessing support in relation to that. The landlord suggested mediation to both parties, which was one of the options available to the landlord under its policy, and was solution focused. The agreed outcomes were appropriate at that stage.
The landlord met with the neighbour on 13 July 2021, this was a joint visit with the police. In the meeting the landlord discussed the video footage of the neighbour verbally abusing the resident. It highlighted how that had broken the agreement he had made with the landlord in May. Unfortunately, the neighbour did not want to participate in mediation as a resolution and it was appropriate for the landlord not to continue to pursue this option.
However, while the neighbour did not want to try mediation, he did offer to sign something to add weight to his assurances that he would not do or say anything again to the resident. The landlord said that was not required. As mediation was no longer an option and the neighbour had broken a previous agreement, it would have been appropriate for the landlord to consider his offer. By stating it was not required, this was not solution focused and did not provide the neighbour of any potential consequences should the behaviour continue. This was not acceptable, nor in line with its policy.
It was reasonable for the landlord to close the case on 11 August 2021 as it had no lines of enquiry and no further issues of which it could act upon. It would have been appropriate for the landlord to have also undertaken an impact assessment with the resident, as outlined in its policy. If the case needed to be re-opened, the impact assessment would have helped highlight which steps were and were not successful in previously dealing with the issues. It would also have outlined any additional support required for the resident even if the case was still closed. It is important landlords utilise tools such as this to assess risks and inform their approach.
The resident reported a further incident which took place on 9 September 2021. She alleged that the neighbour had thrown bleach/harmful liquid at herself and her son. It is not clear from the records when this was first reported to the landlord. An email from the resident dated 26 September 2021 said it had been 2 weeks since she reported it, with no response from the landlord. The landlord’s records stated that the case was reopened on 15 September 2021, but there is no information to suggest the resident was responded to until 8 October 2021. It was not acceptable that the landlord did not respond to the resident’s initial reports within a timely manner. However, this was appropriately identified in the ASB case review as a failing and again within the landlord’s stage 2 response.
It was appropriate for the landlord to interview the neighbour about the alleged bleach attack on 21 October 2021, although doing so more promptly may have reduced the risk or given an earlier indication of what the risk level was. While the outcome from the police was no further action, it does not appear that the landlord requested a police risk assessment after the incident took place or for any other incidents reported. As a result, the landlord failed to satisfy itself of the risks posed to both the resident and the neighbour. Apart from the initial fact-finding sheet, there is also no indication that a risk assessment was completed by the landlord at any stage in the case. The landlord has not showed how it assessed whether these allegations, in the absence of corroborating evidence, were serious matters, and whether it had considered any enforcement action at the time. This was not in line with the landlord’s policy which states that risk assessing is a practical step to support complainants.
The landlord’s response to the ASB case review process was in accordance with its policy. It acted reasonably in arranging the review with the resident and was proactive in collecting further information to ensure all evidence was available. The response was well considered and the actions identified were appropriate to the case. It was reasonable for the landlord to not expand on the outcome of the ASB case review in its stage 1 response as to not confuse the 2 different processes.
On 17 January 2022 a letter was provided from the resident’s therapist to her GP and the landlord. The letter stated that the resident was presenting with symptoms of PTSD which were exacerbated by current abuse and harassment from the neighbour. The letter said that referrals had been made on both the resident’s and her son’s behalf in relation to their wellbeing. The landlord should have considered this at the time. Records show that the case was closed on 18 January 2022 in a call with the resident. There is no evidence to suggest that the landlord considered the letter when closing the case. By not doing so, it did not sufficiently assess the impact, and this would likely have contributed to the distress which was already caused.
In its stage 2 response, the landlord referred to the resident’s concern that the door knocking exercise undertaken in November 2021 was inaccurately reported. While it explained that it said most residents did not have issues to report, this was not clear at the time, and could appear misleading. It referred to historic issues reported which did not require further action, however, some of the issues reported were linked to the resident’s allegations and were not historic. The landlord did not sufficiently explain how it considered the concerns raised and whether this impacted the resident’s case. The Ombudsman does not feel the landlord acted transparently in relation to the door knocking exercise and as such, it did not put right this element of the resident’s complaint.
The landlord should have demonstrated that it followed its ASB policy and set out its position transparently on every report received. The landlord’s communication with the resident was mostly responsive and it engaged well with the police. However, the landlord did not demonstrate that it had sufficiently risk assessed throughout the case. It also does not appear that it considered any other informal action it could take to prevent escalation, aside from mediation. This leads the Ombudsman to find service failure in the landlord’s handling of the resident’s reports of ASB from her neighbour.

The landlord’s handling of the resident’s request for a mutual exchange.

The resident contacted the landlord on 26 April 2021 and she said she had been in touch with the lettings team regarding a mutual exchange. She said she was advised to send an email explaining her circumstances to see if it would allow her to swap with rent arrears. She said she felt the issues with her neighbour would be a mitigating reason for the mutual exchange and asked her community resilience officer if they could assist. The officer responded by saying they would forward on her email to the lettings team but encouraged the resident to contact them independently. The response from the officer at the time was appropriate.
While the Ombudsman does not doubt the resident’s account, there is no record of the conversation where she was advised to send an email explaining her circumstances. The landlord’s mutual exchange policy does not refer to rent arrears and as such, it is difficult to determine whether the advice provided at the time was appropriate. Up until the landlord’s stage 2 response, there is no correspondence from the landlord which confirms whether the resident may have been able to mutually exchange with rent arrears. It would have been appropriate for the landlord to have clarified this with her sooner. The resident stated in an email dated 1 July 2021 that she had been contacting different departments regarding the mutual exchange and was passed between them. By not clarifying her situation, this would have been frustrating for the resident and potentially raised her expectations regarding the mutual exchange.
In its stage 2 response the landlord said the resident was advised to submit a mutual exchange application by her community resilience officer in April 2021. There is no record provided of the officer advising the resident to complete a mutual exchange application. The landlord also did not confirm whether this would have made a difference with the resident being in arrears. It would have been appropriate for the landlord to have confirmed this to the resident to help clarify the matter. The response was inappropriate and appears to apportion the blame to the resident.
In its stage 2 response the landlord stated that the resident contacted the housing team with details of a resident who was willing to swap. It said the resident could not take advantage of the “HomeSwapper” scheme as she was in rent arrears. It said that she was advised to register on the mutual exchange register. It concluded by stating that the mutual exchange scheme would be the quickest way of achieving a move, however, this was only possible when tenants do not have rent arrears. The advice provided both at the time and in the stage 2 response was confusing. The landlord did not explain why the resident was advised to register on the mutual exchange register instead and how that would have assisted in the resident’s case.
While there is evidence in this case of the resident receiving clear and appropriate advice regarding housing options in general. The landlord missed opportunities to clarify the mutual exchange process for the resident. It appears that the resident was led to believe that action could be taken when subsequently it could not. As such, the Ombudsman has found service failure in the landlord’s handling of the resident’s request for a mutual exchange.

The landlord’s handling of the complaint.

The landlord has a 2 stage complaints procedure. At stage 1, it states it will acknowledge the complaint on receipt and confirm its understanding of the complaint. It will aim to provide a response within 10 working days and if there is delay, it will provide the estimate timeframe for a response. At stage 2 it will conduct a review of how the complaint was originally dealt with and aims to provide the outcome within 15 working days of the escalation.
Following the stage 1 response, the resident contacted the landlord on 5 May 2022 and stated that she wished to submit another complaint. The landlord responded on 9 May 2022 to say the request for a formal complaint had been received and she would receive a response in due course.
Internal communication shows that it considered whether the complaint would be dealt with as a stage 2 complaint and it was decided it had already been dealt with, so it could be closed. There is no evidence to suggest this was communicated to the resident. By not doing so, the resident was led to believe she would receive a response. The landlord’s decision to close the complaint without informing the resident was dismissive and unsympathetic to the resident’s concerns.
The resident contacted the landlord on 6 July 2022 to state that she had not received a response. The landlord responded on 7 July 2022 and said it was unclear whether she wished to escalate the complaint to stage 2 but it had now been requested. The landlord was not transparent with the resident regarding its actions when the complaint was made on 5 May 2022. If it was was unclear, it would have been reasonable to have contacted the resident to clarify next steps. This would have shown that the landlord was solution focused and wanted to maintain the landlord and resident relationship. The stage 2 response stated that the resident escalated her complaint to stage 2 in July 2022, it does not acknowledge that the resident requested a formal complaint in May 2022 and did not receive a response. The complaints procedure is an opportunity for the landlord to acknowledge when it has got things wrong and put it right. It is disappointing that the landlord did not do so in this instance.
On 28 July 2022, the landlord said it would be unable to provide a response within the 15 working day timeframe due to additional enquiries needed. It said it would respond by the week commencing 15 August 2022. It contacted the resident again on 18 August 2022 to apologise for a further delay which was to ensure that the appropriate response was provided. It said it would provide its response during the week commencing 29 August 2022 and the landlord responded on 1 September 2022. While it is positive that the landlord kept the resident updated, the response still took 83 working days from 5 May 2022 when the resident raised another formal complaint. The landlord did apologise for the delay; however, it would have been reasonable for it to have considered compensation to account for the distress and inconvenience caused.
In its stage 2 response on 1 September 2022, the response was thorough and addressed each element of the resident’s complaint. It noted delays in responding to the resident in September 2021, April 2022, and July 2022 and apologised for the frustration caused. It said it was satisfied that her concerns were taken into consideration and that it had liaised with the police. Unfortunately, the landlord failed to recognise its own failing in its handling of the stage 2 response and in doing so it failed to acknowledge the adverse impact on the resident. For those reasons, the Ombudsman has found service failure in the landlord’s handling of the complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
1. service failure in the landlord’s handling of the resident’s reports of ASB from a neighbour.
2. service failure in the landlord’s handling of the resident’s request for a mutual exchange and the information provided.
3. service failure in the landlord’s handling of the complaint.

Orders and recommendations

Orders

The landlord is to offer a meeting to the resident to understand any ongoing concerns. The landlord should act in accordance with its policy. Where appropriate it should conduct a risk assessment, agree a written action plan, and communicate with the relevant parties. If the landlord considers no further action is required, it should write to the resident detailing why it has made this decision.
The landlord is to pay the resident a total of £250 compensation comprising of:
1. £100 for the failures identified in the handling of the resident’s reports of ASB.
2. £100 for the failures identified in the handling of resident’s requests for a mutual exchange and the information provided.
3. £50 for the service failure in the landlord’s complaint handling.
The landlord is ordered to confirm to this service that the above order has been complied with within 4 weeks of this report.

Recommendations

It is recommended that the landlord continues to support the resident in seeking a house move (if she still wishes to do so), either through mutual exchange or by other means. This should include providing relevant information and, where possible, a point of contact.