Birmingham City Council (202112335)
REPORT
COMPLAINT 202112335
Birmingham City Council
8 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 handling of reports of antisocial behaviour (ASB) from the resident.
- The landlord’s handling of reports of antisocial behaviour (ASB) made against the resident.
- The landlord’s complaint handling.
Background
- The resident was an introductory tenant of the property from 26 April 2021 up to 26 April 2022 when he became a secure tenant. The property is a maisonette, comprising of two floors, in a block of flats owned by the landlord. The resident lives with his partner and three young children.
- On 18 May 2021, the resident reported a noise disturbance issue from a neighbour to the landlord, whereby the neighbour had buzzed his intercom late at night. The landlord treated the report as potential ASB, investigating with the resident and neighbour up to 20 May 2021. It found the issue did not meet the threshold for ASB and decided no further action would be taken. It closed the case and asked the resident to resolve his issue amicably. The resident asked to speak with a senior member of staff on 20 May and 8 June 2021. This Service can find no evidence this was completed.
- The same neighbour reported a noise complaint against the resident on 19 July 2021. The landlord issued a tenancy warning letter to the resident the following day detailing furniture being moved and children running up and down in the property. It also said the resident had installed laminate flooring without its permission. It advised it could take further measures for a breach of his introductory tenancy agreement, including, notice of possessions proceedings which could extend his introductory tenancy or evict him from the property.
- The resident contacted the landlord on 26 July and 25 August 2021 regarding its letter from 20 July 2021. He stated the following:
- He disputed the noise disturbance had taken place and said he did not have laminate flooring, providing photos to confirm this.
- He reported ongoing harassment from his neighbour which was making him feel unsafe. He said his family avoided being at home during the daytime. He explained the vulnerabilities in his family, including his wife’s pregnancy and the health of his child.
- He was concerned by the further measures the landlord said it could take and the terms used.
- The resident brought his case to this Service who made multiple attempts between September and November 2021 to elicit a complaint response from the landlord. It provided a response to the resident on 9 November 2021 confirming the complaint and asked to meet to discuss the issues. The resident responded on 18 November 2021 reattaching his complaint of 25 August 2021, but the landlord did not respond. The Ombudsman issued a complaint handling failure order (CHFO) to the landlord on 26 November 2021 for its failure to provide a formal response to the resident. It reissued its response of 9 November 2021 again to the resident on 9 December 2021 as its stage one response.
- The resident contacted the landlord on 18 January 2021 using the contact details it had provided to him previously and received no response. He reported his emails to the landlord were being blocked and he was unable to escalate his complaint. This Service asked the landlord to provide a stage two complaint response by 24 May 2022.
- The landlord provided its stage two complaint response on 20 May 2022. It said the following:
- The member of staff who provided their contact details to the resident was no longer employed by the landlord.
- It provided details of the neighbour’s ASB complaint, which it said was only alleged. It also said it was standard practice to send out allegation letters when it investigated an ASB case.
- It provided its policy for installing flooring and said the resident’s ASB complaint was closed on 25 May 2021.
- In referring his complaint to this Service, the resident said he was unhappy with the landlord’s handling of the ASB reported against him and issuing the warning letter to him. He also said the landlord had not delivered a long-term solution to his reports of ASB from his neighbour. He also detailed the impact the complaint had on his health.
Assessment and findings
- The Ombudsman’s role is not to establish whether the reported ASB occurred or to assess the credibility of the reports made by the resident or neighbour. It is to establish whether the landlord’s response to the resident’s reports were aligned with its legal and policy obligations, and whether its actions were fair in all the circumstances of the case.
- As a public authority if the landlord has determined a reported behaviour to be ASB it must give due regard for Public Sector Equality Duty under section 149 of the Equality Act 2010, ensuring any action taken is reasonable and proportionate.
- The landlord’s Commitment to Residents’ policy states it is committed to treating everyone fairly and equally. It says it will give everyone equal access to its service, will not discriminate against anyone and will act quickly and firmly against any kind of discrimination.
- The landlord’s ASB policy states ASB is any behaviour which reduces the quality of life of residents in an area. It also states when reports of ASB are made it considers it high priority, it will investigate the problem, agree an action plan, and support everyone affected by ASB. It advises residents could break the conditions of their tenancy agreement if they upset, annoy, or cause a nuisance to anyone in the area around their home.
The landlord’s handling of reports of antisocial behaviour (ASB) from the resident.
- The landlord’s initial investigation into the resident’s ASB report on 18 May 2021 was reasonable. As part of its investigation, it had spoken with both residents and asked them to resolve the matter amicably between them. Whilst the intercom being buzzed at night was clearly distressing for the resident, the landlord did not consider it to be a serious issue. It deemed the resident’s report not to reach the threshold of ASB following its investigation, which was reasonable in the circumstances and in accordance with its ASB policy.
- The landlord failed to respond to the resident’s request for a senior member to call him back about how his concerns had been addressed. Its failure to communicate with the resident after this date escalated what it initially considered to be only a minor issue. As a result, the resident’s expectations were not appropriately managed, causing uncertainty to him.
- On 25 August 2021, the resident reported to the landlord his neighbour was discussing his household negatively to other residents and “continually harassing him”. He believed this amounted to discrimination and felt his neighbour was unhappy with his family moving in due to “their race and religion”. These were significant concerns which met the criteria to be considered as potential ASB and for the landlord to respond through its ASB procedure. It did not provide acknowledgement or attention to these points in its correspondence with the resident or this Service. It was inappropriate for the landlord not to have acted in accordance with its ASB policy which treated the resident with disrespect, denying him the chance to be fairly heard.
- Furthermore, the residents’ report about discrimination due to his race and religion should have been treated seriously by the landlord. The landlord’s website states promoting equality and tackling inequalities is at the heart of its goals. The treatment of the resident in ignoring his report was not in line with its goals and commitment to equality and diversity.
- The landlord’s ASB policy states it will engage with both residents when a report is made and work towards a resolution, treating it as high priority. There is no evidence the landlord took action in relation to the resident’s reports of harassment in August 2021. The resident stated he and his family felt continually harassed and unsafe in their home. He still felt this was the case upon raising this with this Service. This further highlights the lack of care and empathy given to him and his family following his report in August 2021.
- The resident provided details about the vulnerabilities of both his partner and child and the impact the issues were having on them in his report to the landlord in August 2021. This Service find no evidence of a risk assessment being conducted by the landlord to see what impact any household vulnerabilities might have on how it might need to manage the tenancy or any ongoing situation. This failure provides concern that the landlord did not meet its obligations to the household from an equality and diversity perspective.
- The resident himself explicitly stated that he viewed the neighbour’s actions as targeted to he and his household due to ethnicity. It is of significant concern that the landlord has failed to evidence any response to this viewpoint as this again indicates that the landlord failed to confirm that it had acted in accordance with its equality and diversity obligations. The Ombudsman does not have the authority to determine that a breach of such obligations have taken place, however, the concerns highlighted here give rise to an overall finding that the landlord did not act reasonably to the resident and his household on this significant issue.
- Following the resident’s report in August 2021 the landlord had further opportunities in which it could have revisited the resident’s overall concerns; in its correspondence with this Service and the resident, and its stage one and two complaint responses. It did not do this which prolonged the distress and feeling he was being ignored.
- Overall, there was maladministration of the landlord’s handling of the resident’s reports of ASB. It ought to have acted on his request for contact from a senior officer and raised a formal complaint on the issue when the resident first requested it. If it did not believe these were required it should have explained this to the resident and provided him with the opportunity to respond in turn. There is no evidence of any action taken by the landlord on the further reports from the resident about his neighbour, which detailed potential escalation of the situation. In addition, there are concerns about how the landlord handled the case from an equality and diversity perspective.
- The landlord did not consider the vulnerabilities in the household. It did not support the resident or his family with any outlet of resolution or support and its inaction allowed the concerns to escalate. For these reasons £300 compensation has been awarded for the distress and inconvenience caused to the resident and his family in which the landlord failed to put things right.
The landlord’s handling of reports of antisocial behaviour (ASB) made against the resident.
- Once the landlord received the neighbour’s report of 19 July 2021 it had an opportunity to engage with both the resident and neighbour to address and resolve the respective issues in line with its ASB policy. The neighbour’s reports about the resident indicates the issues between the parties was escalating. Having dismissed the resident’s earlier reports, it was given a further opportunity to investigate the issues by initiating its ASB policy. It instead issued the resident a tenancy warning letter based solely on the neighbour’s report. Instead of making progress to a potential resolution, it made the situation worse.
- This Service can find no evidence that the landlord investigated the report of ASB against the resident before sending the tenancy warning letter to him on 20 July 2021. This was unreasonable as the landlord did not obtain an impartial and fair understanding of what took place, agree an action plan between the residents, nor did it corroborate the neighbour’s reports before issuing the warning to him. The resident was not treated fairly in this instance as it had taken his neighbour’s reports at face value and issued a tenancy warning letter without giving him the opportunity to respond. This was not in line with the landlord’s policy of treating everyone fairly and equally.
- The focus of the neighbour’s reports about the resident would indicate the issues were not ASB but potential noise transference between properties. As the landlord did not complete an investigation into the reports it was unable to establish this. This Service has not seen it has a specific policy for addressing a report of noise transference. The Ombudsman’s ‘Spotlight on: Noise Complaints’ provides information and guidance for neighbourhood management of reports which could be treated as noise transference. Relevant sections advise on modern living, starting a new tenancy and engaging with residents effectively.
- In response to the landlord’s letter of 20 July 2021 the resident reported on 26 July and 25 August 2021 that he did not have laminate flooring. He provided photographic evidence of a carpeted room full of stored items. The landlord did not respond to the resident on this issue other than reiterate the same accusation in its stage two complaint response. This was unfair and clearly demonstrates the landlord was not listening to the resident. Having received a response from the resident about the flooring, it had opportunity to investigate and clarify the actual state of the flooring and how it might be impacting the situation. Instead its failure to progress this aspect of the case added to the resident’s sense of unfairness and his view the landlord was discriminating against him.
- In all the circumstances the landlord has not demonstrated that it acted reasonably to the resident and was unequal in its approach. It took prompt action against him based on his neighbours report of noise from his property. However, it then did not address or failed to address with any depth the residents response to the reports of noise and his counter-report about his neighbour. It did not demonstrate it prioritises all reports of ASB or takes them seriously, particularly given the seriousness of the resident’s counter-report.
- The landlord’s wording in it’s stage two complaint response indicates an attempt to downplay the serious nature of its tenancy warning letter. It portrayed the letter as detailing the allegations made against him and it offered him opportunity to respond. This was not the resident’s understanding of the letter and the wording used by the landlord confirms he was correct in his view. The letter was clearly labelled as an ‘Introductory Tenancy Warning’ letter with clear details as to what could happen if the resident breached his tenancy. The landlord’s stage two complaint response indicates it understood it had made a mistake in issuing the tenancy warning letter. However instead of acknowledging this error, it instead sought to alter the perspective of how the tenancy warning letter would be interpreted. The Ombudsman finds this approach deeply concerning as it shows a lack of respect for the resident and its own complaints process, which is in place to identify such failure and put them right.
- In summary there was maladministration of the landlord’s handling of reports of ASB against the resident. It failed to investigate the report from the resident’s neighbour and took everything said at face value. Its tenancy warning letter to the resident was unfair and inappropriate, causing alarm and distress to his household. The landlord continued to request the resident remove his flooring when it had no evidence whether this was accurate. The resident felt distress and that he had not been treated fairly, due to the landlord only listening to his neighbour’s reports and taking no action on the serious counter report he made. For this £400 compensation has been awarded for the distress and inconvenience caused to the resident and his family in which the landlord acted unreasonably.
Complaint handling.
- The resident complained online on 10 June 2021 and the landlord acknowledged this on 21 September 2021 equivalent to 73 working days. It stated here it could not accept the complaint as there was an ongoing ASB case. Following multiple requests from this Service to respond through its internal complaint’s procedure, it provided its formal response on 9 November 2021. This amounted to 108 working days after the June complaint. The delay for the landlord’s response was inappropriate given the requirements of its complaint policy of replying within 10 working days.
- After issuing the tenancy warning letter on 20 July 2021 the landlord closed the ASB case against him on 2 November 2021 as there were no further reports of ASB from the neighbour about him. It was unreasonable not to consider the resident’s complaint of 10 June 2021 whilst this was pending. It denied the resident a prompt investigation into the allegations made against him.
- This Service’s Complaint Handling Code states that landlords must address all points raised within complaint responses. The landlord did not address the resident’s further concerns about how his report of ASB was dealt with in any of its further correspondence. It therefore did not adhere to the Code.
- The resident attempted to contact the landlord on 18 November 2021 in response to its formal response of 9 November 2021. He received no reply, so this Service issued requests for the landlord to reply, followed with a CHFO on 26 November 2021. The landlord reissued the response of 9 November 2021 on 9 December 2021 and confirmed this was its stage one complaint response. This was inappropriate as the letter contained no new information in response to the residents further reports. It merely detailed internal issues it was having, its attempts to contact him and how he might contact it to discuss further.
- In failing to have a contingency process for a staff member leaving their employment or storing documentation within shared folders, the landlord’s processes failed to ensure continued access to any records they would rely upon in the fulfilment of their responsibilities. As such the resident’s emails of 18 November 2021 and 18 January 2022 were not seen or responded to by the landlord. This caused frustration to the resident over the landlord’s communication and denied his opportunity to dispute the allegations made against him and escalate his complaint.
- On 22 April 2022, this Service asked the landlord to provide the resident with a stage two complaint response, as he had received no response to his previous emails. The landlord provided this within 20 working days which is in accordance with its complaint’s policy. However, it must be noted the resident was denied the opportunity to escalate his complaint sooner as he was unable to contact the landlord.
- As previously explained the landlord’s interpretation of its tenancy warning letter in its stage two complaint response is of deep concern. Its ‘Commitment to Residents’ policy states if it gets it wrong it will try hard to provide a fair and efficient service. Its response was neither fair nor efficient and further escalated the issue. There was no evidence the landlord sought to learn from this error and put things right.
- Overall, there has been maladministration of the landlord’s complaint handling. The resident duly responded to the landlord as requested in November 2021. It failed to provide further meaningful correspondence on the case to support a resolution between the resident and neighbour, despite having the opportunity to do so. Further intervention was required by this Service to ensure he received a response. The landlord allowed the complaints raised by the resident to become protracted causing distress, inconvenience, and uncertainty to the resident.
- A landlords complaint process enables them to learn from issues and identify trends so it can take preventative action and learn from this. The landlord failed to adhere to its own complaints policy or acknowledge and learn from its error in sending the tenancy warning letter to the resident. To reflect the resident’s distress and inconvenience due to the landlord’s failures, £300 compensation has been ordered.
Determination
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of reports of antisocial behaviour (ASB) from the resident.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of reports of antisocial behaviour (ASB) made against the resident.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s complaint handling.
Orders and recommendations
Orders
- The landlord shall carry out the following orders within four weeks of the date of this report:
- Pay the resident a total of £1000 in compensation. Compensation should be paid directly to the resident, and not offset against any arrears. The compensation comprises of:
- £300 for the distress and inconvenience caused to the resident by the inappropriate handling of the resident’s reports of ASB.
- £400 for the distress and inconvenience caused to the resident by the inappropriate handling of the report of ASB made against the resident.
- £300 for the distress and inconvenience caused by the landlord’s delays and unreasonable complaint handling.
- A senior member of staff to write an apology to the resident for the failures in its service and provide confirmation the tenancy warning of 20 July 2021 has been removed from his case file.
- Contact the resident to discuss any ongoing issues they may have and open a new ASB case if necessary.
- Pay the resident a total of £1000 in compensation. Compensation should be paid directly to the resident, and not offset against any arrears. The compensation comprises of:
- The landlord to provide evidence of compliance with the above orders to this Service within 28 days.