Cannock Chase District Council (202106467)

REPORT

COMPLAINT 202106467

Cannock Chase District Council

8 August 2022

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 resident has complained about:
1. The landlord’s response to reports of ASB and counter allegations.
2. The landlord’s handling of his concerns about staff conduct.

Background and summary of events

Policies and Procedures

Paragraph 6.2 of the landlord’s Code of Conduct for Employees state that “You must always remember your responsibilities to the community we serve and make sure that you treat all groups and individuals within that community courteously, efficiently and impartially. Further details on this can be found in the Customer Care Charter and other Council policies, in particular the Equality & Diversity Policy”.
The landlord’s ASB Policy and Procedure states it has adopted the following approach:
1. “Our approach is one of prevention, enforcement and support.
2. We will respond to reports of Anti-Social Behaviour.
3. Investigation will start at the earliest possible time after receipt of the complaint and be conducted with all reasonable speed.
4. Investigations will seek to identify and interview all interested parties.
5. Complainants will be advised of progress of their case and will be involved throughout the course of the investigation.
6. Where appropriate, parties will be encouraged to engage in the mediation process”.
The landlord’s ASB Policy and Procedure elsewhere states:
1. “We will assist an owner occupier or private tenant where the alleged perpetrator is a council tenant.
2. We will act quickly to all reports of Anti Social Behaviour, recognising that this can help prevent situations from escalating”.
Regarding partnership working which includes the police, the ASB Policy and Procedure states: “All partner agencies carry out a range of functions relating to ASB. In many instances in order to pursue a course of action, joint working will be an important part of the approach taken”.

Summary of Events

The resident is a tenant of the landlord, and his property is a house. He has been represented by his son in his dealings with this Service and the landlord. His neighbours are not tenants of the landlord but private residents. Historically, there have been difficulties in the relationship between the resident, his son, and the neighbours although there is no evidence of any reports made to the landlord between 2014 and the incident below.
The resident has described an incident on 30 October 2020 whereby his son confronted the neighbour about rubbish thrown over the rear fence. The neighbour after called the police stating the resident’s son had made violent threats.
On 3 November 2020 the landlord emailed the police agreeing to carry out a joint visit, postponed until December 2020, due to a pending Covid-19 lockdown starting on 5 November 2020.
On 11 December 2020 a member of staff from the landlord with two PCSO’s visited the resident. The landlord’s records indicate that both properties were visited, the neighbour being visited first, and that the resident invited the landlord and PCSO’s in. However, the notes further state that the resident was “obstructive” when the landlord spoke to him about incidents involving the neighbours and called his son whilst the landlord was there. The son spoke to the landlord’s member of staff and according to the notes was “extremely rude” and ended the call after swearing.
On 14 December 2020 the landlord wrote to the resident advising that it would carry out a joint visit on 5 January 2020 with the police and suggesting that his son attend as there were allegations made against his son. The letter outlined the resident’s tenancy terms and conditions. The landlord later cancelled the visit due to Covid-19 restrictions.
On 14 December 2020 the resident’s son made a formal complaint about the conduct of the member of staff at the visit of 11 December 2020. He stated that the member of staff did not announce the visit and was accompanied by two PCSO’s, and had tried to intimidate and confuse the resident. The resident’s son advised that when he called the member of staff by phone, he acted like a “belligerent pedant with an inflated sense of self-importance and a complete lack of objectivity”. The resident also complained that the landlord gave credence to malicious, fictitious and vindictive allegations and accusations by his neighbours.
On 5 January 2021 the landlord sent the Stage 1 response confirming that it had visited the resident to discuss allegations made against the household, which included threats, foul language and loud music towards his neighbours. It clarified that it had a duty to investigate matters that could constitute a breach of tenancy and that it also worked closely with the police. The landlord also stated that visits of this nature were intended to address and discuss concerns with a view to providing a solution and the questions asked were not intended to upset the resident. It concluded that there was no evidence that it had acted inappropriately in visiting the resident.
On 7 January 2021, the resident’s son escalated the complaint stating that the resident faced a “barrage” of questions which confused and upset him. He also stated that when he phoned the member of staff, he was unwilling to answer questions and displayed an “inherent bias”. The resident’s son contended that the landlord was “guilty of responding to malicious falsehoods and outlandish complaints” from the neighbour, and listed counter-allegations he had made from 2014 and prior. The resident’s son further contended that the landlord had not considered his and his father’s physical and mental health and that the Stage 1 response endorsed the “biased and belligerent” behaviour of the member of staff.
In December 2020 and January 2021, the police advised the landlord that the resident had reported that the neighbour had thrown objects over the fence but there was no evidence that this was the case. The police also advised that it told the resident after he reported a party in the early hours to report noise to the landlord but that the resident did not want to phone the landlord. The parties have advised this Service of other incidents reported by the resident of noise and objects thrown over the fence between November 2020 and February 2021 and although some were reported to the police and Environmental Health, none were reported to the landlord.
On 20 January 2020 the landlord sent the Stage 2 response to the complaint. It noted that it had called the resident’s son on 12 January 2021 to discuss the complaint, but he was unavailable and left a voicemail. It noted the visit was carried out to discuss reports of noise, threat gestures and verbal abuse that had been made to the landlord and the police, and a conversation took place where the landlord asked specific questions to ascertain the resident’s side of events and to obtain further information. It further noted that the resident’s son had spoken to a PCSO then the member of staff on the phone to whom he became abusive before the call was terminated.
The landlord advised that having investigated there was no corroborated evidence or independent witnesses to substantiate the neighbour’s report of ASB, therefore it had closed the matter and notified the neighbour. The landlord noted that historic complaints had been investigated and closed due to a lack of evidence. The landlord noted that the resident was extremely anxious and upset from its conduct at the visit and stated it was not the intention of the member of staff to cause upset, but to gather further information as part of an investigation process.
The landlord wrote further of 18 February 2021 accepting the member of staff should not have visited the resident’s home without first substantiating the allegation. It also apologised for the member of staff not contacting the resident before visiting and noted that member of staff was apologetic and regretful. The landlord noted, however, that the visit was in a secondary support capacity to the police, and the member of staff was acting in good faith to support the resident and the neighbour to prevent the matter escalating to a breach of tenancy, ASB or criminal behaviour.
The landlord has advised this Service that it has offered the resident and his son mediation which has been refused.

Assessment and findings

The landlord’s response to reports of ASB and counter allegations

Historic problems between the resident and his neighbour have been noted to provide the context to the current complaint but not investigated. This is in accordance with paragraph 23(e) of the Scheme, which states that the Ombudsman will not consider complaints which were not raised with the landlord as a formal complaint within a reasonable time, which would normally be within six months of the matter arising. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to 2020 and is focused on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in December 2020.
It is important to reiterate at the outset that it is not for this Service to determine if the behaviour reported constituted ASB, as that was a judgement which fell to the landlord to determine. The landlord, however, has a responsibility to ensure that it takes appropriate and proportionate action to address and resolve reported ASB, and that it has adequate and effective procedures in place for doing so.
It should also be noted that a resolution which suits all parties may not be possible in cases where there are lifestyle differences or personality clashes, resulting in neighbour disputes rather than ASB, for example.
Upon receiving reports of alleged ASB the landlord first needs to gather evidence to establish whether the behaviour is unreasonable and constitutes ASB. Its procedures must also ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has established the facts. It is therefore important that a landlord has in place procedures to ensure reports of ASB are appropriately and effectively responded to. The landlord’s policy and procedure for addressing ASB was comprehensive and appropriately structured. It allowed for the prioritisation of reports and provided a number of measures that could be taken either in isolation or in conjunction, depending on the severity and urgency of the reports. Embedded within the procedure was the need for engagement and liaison with partner agencies, including the police. This Service must therefore consider whether the landlord followed its own procedure in response to the reported ASB.
In this case the landlord had a responsibility under its ASB Policy to investigate the report of ASB made against the resident. Although the resident complained that the landlord validated what he considered to be a “malicious” report, its ASB Policy states that “Investigations will seek to identify and interview all interested parties”. The landlord followed this by seeking to interview the resident (who as the tenant is responsible for the actions of his household members) and the neighbour. Interviewing an alleged perpetrator is also appropriate as it provides them with notification of the alleged ASB, allows them to respond and, where relevant, put matters right. This is in line with the landlord’s policy aim to prevent disputes escalating. In speaking with an alleged perpetrator about a matter reported, the landlord is not making a finding of fact or assuming that a report is true but facilitating an open dialogue and a reminder of tenancy responsibilities, where relevant.
In this case the landlord visited the resident with the police in line with its policy on partnership working. Although the police operate to a criminal standard of proof and the threshold to take action is much higher than that in civil law or other non-legal processes, including landlord action and response to reports of ASB, evidence obtained by and with the police can be used by landlords to inform what if any further action it should take on a case.
The landlord in the Stage 2 response stated that there was no corroborated evidence or independent witnesses to substantiate the neighbour’s report of ASB, therefore it had closed the matter and notified the neighbour. This demonstrates that the landlord ultimately decided what action to take on the neighbour’s report based on the (lack of) evidence and updated the parties of this decision in line with the requirement of the ASB policy.
The resident reported incidents of ASB between November and February 2021 to the police and Environmental Health. However, he did not report the incidents to the landlord therefore it was reasonable that the landlord did not act on them. HHIt is also limited in the action it can take as it is not in a contractual relationship with the neighbour. However, the landlord has offered mediation to the parties which is an option in line with its ASB policy and an option commonly offered in neighbour disputes. It allows the parties to understand the view of other party and arrive at a mutually agreed way to live together without problems. This indicates that the landlord has been willing to find a resolution to the neighbour problem.
The landlord’s second stage 2 response contradicted the other two earlier responses by stating that the landlord should not have visited before substantiating the report by the neighbour. This served to confuse its position on the resident’s complaint and was not reasonable because as noted landlords are entitled to put reports of ASB to alleged perpetrators, as part of the process of investigating the reports and seeking to prevent the escalation of a dispute. However, this is a shortcoming in its complaints handling and does not affect this Service’s assessment of its handling of the substantive reports of ASB from the neighbour.

The landlord’s handling of the resident’s concerns about staff conduct

As noted above, it was appropriate and in line with its responsibilities that the landlord visited and investigated the neighbour’s report (with the police) in the first instance. An aspect of the resident’s complaint to the landlord, however, was that the visit of 11 December 2020 was unannounced. The landlord was not specifically obliged to give notice to the visit. However, it did not take into account that pre-arranging the visit may have ensured that the resident’s son, against whom the allegation was made and therefore best placed to respond, was present. The landlord in the further Stage 2 accepted it should have given notice for the visit and apologised for this. An apology that acknowledges a service failure, accepts responsibility for it and expresses sincere regret is a form of redress, and the landlord’s apology provided reasonable redress for this aspect of the complaint.
The resident also complained about the landlord’s conduct at the visit. It is acknowledged neighbour problems and potential tenancy breaches are sensitive issues which can raise emotions, and also that people’s perceptions of actions and behaviours can vary. Therefore, discussions on these issues must be handled sensitively and professionally. In this case, the resident’s son complained to the landlord that the member of staff was not impartial, belligerent, did not answer questions and intimidated his father. However, in his complaint the resident’s son did not provide specific details to explain why he took this view, for instance by quoting from the conversation with the resident, or the conversation he had on the phone or describing other actions.
This Service’s Complaint Handling Code states that “Effective complaint handling enables residents to be heard and understood. The starting point for this is a shared understanding of what constitutes a complaint” and “If any aspect of the complaint is unclear, the resident must be asked for clarification and the full definition agreed between both parties.” Therefore, the onus was on the landlord to ascertain exactly why the resident and his son was unhappy with the conduct of the member of staff, for instance, why they thought he was not impartial and belligerent and what questions raised he did not answer.
The Stage 2 response indicates that the landlord sought to ascertain the details of the resident’s complaint by phoning his son on 12 January 2021 and leaving a voicemail. Whilst the landlord is not responsible for any lack of response from the resident and his son, there is no evidence that the landlord then followed its phone call before responding to the complaint.
Furthermore, with complaints of staff conduct it is also important for the landlord investigates its own actions, for instance by interviewing the member staff concerned and referring to the case notes. It is also reasonable to seek to obtain the account of witnesses, as there were in this case, the PCSO’s. This is because this information will ensure its understanding of events is as full and balanced as possible. This in turn will enable it to send an informed response to the complaint. There is no evidence the landlord carried out these investigations. As such the landlord did not take sufficient steps to investigate and address the resident’s complaint concerning staff conduct before sending its complaint response.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Service, there was no maladministration by the landlord in respect of its response to reports of ASB and counter-allegations.
In accordance with paragraph 54 of the Housing Ombudsman Service, there was service failure by the landlord in respect of its handling of the resident’s concerns about staff conduct.

Reasons

It was in accordance with its responsibility under its ASB Policy and Procedure that the landlord investigated the report of ASB made against the resident. In this case the landlord visited the resident with the police in line with its policy on partnership working.
The landlord ultimately decided what action to take on the neighbour’s report based on the (lack of) evidence and updated the parties of this decision in line with the requirement of the ASB Policy and Procedure. The landlord has offered mediation to the parties which is an option in line with its ASB Policy and Procedures, and is an option commonly offered in neighbour disputes.
The landlord did not take adequate steps to investigate and address the resident’s concerns about staff conduct before sending its complaint response.

Orders and recommendations

The Ombudsman orders that the landlord within the next four weeks:
1. pays the resident £100 compensation for the distress and inconvenience caused by the failings in its handling of the complaint about staff conduct.
The Ombudsman recommends that
1. the landlord provides guidance to staff about identifying and investigating complaints about staff conduct.