CityWest Homes (201806551)

REPORT

COMPLAINT 201806551

CityWest Homes

30 September 2021

Our approach

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

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

The complaint

The complaint is about the landlord’s response to the resident’s reports of:
1. Anti-social behaviour (ASB) at the property.
2. Staff conduct.
3. The landlord’s complaint handling and communication.

Background and summary of events

Background

The resident was a flexible tenant of the landlord at the property and was subject to the terms and conditions contained in the tenancy agreement. The landlord was a local authority. The resident’s tenancy ended with no liability on 3 May 2021.
The landlord operates a two-stage complaints policy. The policy requires that the complainant is kept updated throughout the complaints process. If the resident makes a complaint at the first stage, the landlord should respond within 10 working days. If the resident is dissatisfied with the response, the resident can request a review of the decision and it aims to provide a response within 10 working days. The policy states that complaints not raised within 12 months are not normally accepted unless there is a good reason for the delay, and the landlord should use their discretion.
The resident’s handbook outlines that the majority of new tenancies offered by the landlord are flexible tenancies for a term of 5 years. It advised that a flexible tenancy is a form of secure tenancy, which was for a fixed period. It was expected that most flexible tenants will be offered a new flexible tenancy at the same or another address at the end of the fixed term.
The landlord operates an ASB policy. The policy notes that ASB is any conduct that is capable of causing harassment, nuisance or annoyance to any persons. It includes noise, rowdy behaviour, harassment, intimidation or threatening and violent behaviour. The policy highlights that possible remedies for ASB include investigation, meeting with both parties, action plans, warnings, mediation, acceptable behaviour contracts and working with other agencies such as the police.

Summary of events

It is acknowledged that there have been historical issues of ASB at the resident’s property. On 2 August 2018, the resident contacted the landlord and advised that he had been assaulted by his downstairs neighbour and police had arrested the perpetrator. The landlord attended the property the next day to interview the resident and advised that it would speak with police and get further information about the incident. The resident declined mediation and did not wish to be referred to support services at that time. The landlord advised that if the resident felt threatened he should contact the police.
On 4 August 2018, the landlord spoke with police in relation to the incident at the property and were advised that the perpetrator had been charged. The landlord contacted the perpetrator and issued a formal warning, the individual denied assaulting the resident and made counter allegations. The landlord advised that it was aware that court proceedings were pending and that as a condition of the perpetrators bail the perpetrator was not to contact the resident.
The landlord arranged a meeting with the resident for 28 August 2018 and issued a response to a number of the issues on 6 November 2018. It addressed the following:
1. It apologised that it failed to respond to the resident’s communications and stated that it was due to staff changes and apologised for any inconvenience.
2. It apologised for the way in which the resident’s housing offer dealt with the residents reports of ASB and noise nuisance. It provided the resident with the contact information of two other members of staff in case he needed to report further ASB. It assured the resident that at no point had action been considered against him for complaints he had raised.
3. It advised that it met with the resident on the 28 August 2018 following the incident with his neighbour on 2 August 2018. It outlined the actions it had taken which included meeting with both parties, maintaining contact with police and the issuing of a formal warning in relation to the incident. The resident had confirmed that following the incident he had not been threatened or hindered and it advised that it would continue to monitor the situation.
4. It conducted a meeting with the alleged perpetrator in relation to issues of noise nuisance and he advised that he was anxious to avoid any further conflict and would keep noise to a minimum.
5. It advised that it was not able to offer the resident alternative accommodation or a change in tenancy status as the landlord introduced flexible tenancies in 2013.
On 4 February and 3 March 2019, the resident contacted the landlord and reported further incidences of noise and nuisance from his downstairs neighbour at the property. He expressed that he felt the problem was being ignored by the landlord and that he planned to reply to the landlord’s response on 6 November 2019 and escalate the complaint.
On 15 March 2019, the resident contacted the landlord and reported further noise and nuisance at the property and stated that he felt that he was being discriminated against by the landlord. The landlord responded the same day and advised noise from a window closing and doors closing loudly at night were not ASB but considered domestic noise and it would not be taking the resident’s complaint further. The landlord advised that it was hard to differentiate between different noise and that it had asked resident’s to be mindful about noise in the last newsletter and advised that it will do so again in the next one. It informed the resident that if he was experiencing noise late at night he should contact the council noise patrol.
On 18 April 2019, the resident attended the landlord offices to discuss the ongoing ASB at the property. The resident raised that it was not household noise but noise and nuisance that he had experienced.
On 6 May 2019, the resident contacted the landlord and asked for the issues addressed in its 6 November 2018 response to be escalated to the next stage of its complaints process. The resident provided a detailed history of the complaint.
On 22 May 2019, the resident contacted the landlord and reported noise and nuisance from his neighbour which included doors slamming, loud music and boxing practice. The landlord acknowledged the complaint and advised that it would investigate the issue and it encouraged the resident to provide it with any further reports of noise and nuisance. It advised that it cannot take proportionate action if it did not have any evidence to act upon.
On 7 July 2019, the resident reported ongoing ASB at the property in the early hours of the morning including loud bangs and noise from his neighbour. The resident advised that there had been no progress from the resident in relation to ongoing noise and nuisance. On 24 July 2019, the landlord contacted the resident and organised a meeting at its offices for 31 October 2019 to discuss the ongoing ASB issues.
On 12 August 2019, the resident raised ASB issues against his upstairs neighbour at the property and advised that the landlord had failed to take any action in relation to ASB. He raised that the landlord was not taking any robust steps to stop the noise and nuisance as the landlord’s staff wanted the resident to leave the property. The resident met with the landlord on 27 August 2019 to discuss the issues with two different neighbours, the landlord advised it would contact the public protection team to investigate the resident’s reports.
On 23 October 2019, the resident contacted the landlord and reported ASB at the property and that his window had been broken by individuals shooting fireworks at the residence. The landlord attended the resident’s property the next day to inspect the damage from the fireworks and made safe the window.
On 4 November 2019, the resident contacted the landlord and made a complaint in relation to several issues at the property which included:
1. That his neighbour was responsible for the fireworks attack on 23 October 2019. The resident highlighted that he already had a restraining order against the individual who was convicted of the offence and that he was not supposed to contact him directly or indirectly for 5 years and therefore was in breach of his restraining order.
2. He advised that the ASB issues had been ongoing since August 2018 and was negatively affecting his life and the landlord had failed to resolve the issue.
3. The resident advised the landlord not to speak to anyone about the situation without his explicit written permission.
On 6 November 2019, the landlord acknowledged the resident’s stage one complaint and advised that it would provide a stage one response by 18 November 2019.
On 18 November 2019, the landlord contacted the resident and advised that the investigation was taking longer than expected and would provide a response to the resident by 21 November 2019.
On 21 November 2019, the landlord issued the resident with its stage one response in relation to incidences of ASB at the property and addressed the following:
1. Broken window – following the incident it arranged for a maintenance operative to attend the property the next day and make the window safe. A contractor returned and completed all repairs on 20 November 2019.
2. Fireworks criminal damage –It contacted the police officer in charge of the investigation and was awaiting an update in relation to CCTV footage to determine if the resident’s neighbour was involved. It advised that it was now a police matter but it would provide support to the police should be requested.
3. Noise Nuisance – It highlighted that the resident had made several complaints regarding noise nuisance from a neighbouring flat. It advised that it had met with the resident on a number of occasions and he had advised that the noise had reduced. It highlighted that it had offered independent mediation between the resident and the alleged perpetrator however the resident declined.
In February 2020, the resident contacted the landlord and asked for all of his complaints to be escalated to stage two of the landlord’s complaints process.
On 3 February 2020, the landlord provided the resident with a stage two review denial. It stated the following:
1. It advised that more than 12 months had passed since its response on 6 November 2018 and therefore it would not escalate the complaint to stage two of its complaints process.
2. An apology for the behaviour of a member of the landlord’s staff – It apologised for the contents of a recording provided by the resident in relation to a member of staff’s conduct. It stated that it was highly unacceptable and the member of staff had left the landlord employment. It said that it did not believe there was any malice or discriminatory behaviour but fell short of acceptable standards and was unprofessional.
3. Compensation for the treatment the resident received – it was unable to find any evidence of tangible loss to the resident and therefore was not able to consider compensation.
4. It confirmed in a letter of November 2018 that since 2013 it has only offered flexible tenancies and it was not legally possible to offer a secure tenancy.
5. It advised that it was reviewing the resident’s complaints concerning noise and nuisance and it advised that it would continue to monitor the situation.
On 17 February 2020, the resident contacted the landlord and asked that all communication be via written correspondence and it was not to call him under any circumstances.
On 2 May 2020, the resident contacted the landlord and raised an ASB complaint in relation to his downstairs neighbour who had called him inappropriate names.
On 26 May 2020, the landlord contacted the resident via telephone to discuss his ASB complaint and the resident advised it not to contact him via telephone.
On 17 July 2020, the resident attended a meeting at the landlord’s office to discuss ongoing ASB issues at the property. The resident asked for a management transfer due to the ongoing issues.
On 16 September 2020, the landlord telephoned the resident and asked for him to come into its offices for a meeting to discuss ongoing issues at the property. The resident attended on 22 September 2020 and detailed the ongoing ASB and harassment from his neighbours. It also raised that the landlord had harassed him by continuing to call after he advised he only wished to be contacted in writing. He advised that he wished to be transferred from the property.
On 1 October 2020, the resident contacted this service and highlighted ongoing issues at the property. This service contacted the landlord and instructed it to issue the resident with a stage two response in relation to the resident’s complaints.
On 15 December 2020, the landlord issued the resident with its stage two response and apologised for the delay in responding to the resident’s complaint and failing to escalate his complaint when first requested in May 2019. The landlord addressed the following issues:
1. It said that the resident had raised a number of new issues which had not been addressed at stage one of the landlord’s complaint process and that it would provide a separate stage one response by 12 January 2021. These included outstanding repairs, problems experienced with mutual exchange, the removal of false or misleading information, the review of information on file concerning a former resident and the review of potential data breach.
2. An apology for a member of staff’s conduct – It advised that in a letter dated 3 February 2020, it apologised for the conduct of the member of staff and acknowledged that their behaviour was unacceptable and fell short of its service standards. It conducted an investigation into the conduct of the staff member which was reviewed internally and appropriate action taken.
3. Compensation for the treatment the resident received – It acknowledged the upset the member of staff’s behaviour would have caused and noted that the council should have used its discretion to deal with the resident’s issues earlier at stage two of its complaints process. In recognition of its failure it offered the resident £400 for failing to escalate his complaint and provide a formal response.
4. The resident’s tenancy amended from fixed term to secure – It confirmed it only offers flexible tenancies and granting a secure tenancy was not legally possible.
5. ASB physical attack – It apologised that the resident was physically attacked by his neighbour in August 2018. It asked that the resident provide a copy of the court order and restraining order to the landlord to ensure the resident’s file was up to date. It advised that it had communicated with police regarding the incident and was continuing to deal with reports of noise. It advised the resident that if he ever felt at risk he should contact the police and then notify it. It requested that any noise diaries be sent to it as soon as possible. It advised that there had been counter allegations against the resident in relation to noise and nuisance.
6. Broken window – It advised that it attended the next day and made the window safe and a work order was raised to glaze the window. The resident complained that the landlord called him to notify him of the repair and did not agree with the resident that this was manipulative or patronising.
7. Discrimination from the landlord’s staff – it advised that staff are expected to follow a Code of Conduct but often involved given answers residents were not happy with. It apologised that the resident felt that staff treated the resident differently and assured the resident it was not its intention. It advised that if the resident had any evidence of discrimination then he should provide it and the matter will be investigated.
8. Acknowledgement of Negligence – It was acknowledged that it had failed to respond to concerns raised by the resident. it also said that it would contact the resident in relation to outstanding repairs.

Assessment and findings

Anti-social behaviour (ASB) at the property.

The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case. In reaching its determination the Ombudsman has considered the evidence from both the resident and the landlord. The landlord’s evidence of its actions has necessarily included reference to the resident’s neighbours. For reasons of third party confidentiality the Ombudsman is not able to disclose the details of the landlord’s communication with third parties, but the resident can be assured that the Ombudsman has based its determination on all of the evidence provided.
It is not disputed that the resident began to raise concerns about ASB from a neighbour at the property in August 2018. The landlord demonstrated that on the day it was reported it had opened an ASB case file, met with the resident and contacted police to gain further evidence in line with its ASB policy. Once more information was available it contacted the perpetrator and issued a formal written warning however there was no evidence that it liaised further with police in relation to the issue. The landlord acknowledged its historical lack of response in relation to the resident’s reports of ASB and advised in its response on 6 November 2018 that it would assign new case workers to deal with the resident’s complaints. The landlord appropriately kept in contact with the resident over the coming months and agreed to monitor the situation. It is accepted that there were some historic failures by the landlord, however it took a resolution focused approach and apologised and took appropriate actions going forward in accordance with the landlord’s ASB policy.
The resident made further reports of ASB at the property in February and March 2019. The landlord asked the resident to come into the office in order to investigate the matter. The landlord advised the resident that it was hard to differentiate between household noise and advised that it had issued a reminder in the newsletter to all residents to be mindful of noise. It advised the resident that if he was experiencing noise and nuisance late at night he should contact the council noise patrol. The steps taken by the landlord were appropriate and in accordance with the landlord’s ASB policy.
The resident made at least four more ASB reports to the landlord between May and October 2019. The landlord investigated the reports and had the resident come into the office to discuss the matter on a number of occasions. The landlord encouraged the resident to make reports and to provide further reports of noise and nuisance, it advised that it cannot take proportionate action if it did not have any evidence to act upon. Given the deteriorating relations between the neighbours and the lack of evidence to support an escalated intervention, it would have been appropriate for the landlord to employ tools such as noise monitoring equipment, warnings and acceptable behaviour contracts as a way to attempt to assess and limit noise and nuisance at the property in line with its ASB policy.
On 23 October 2019, the resident contacted the landlord and reported ASB at the property and that his window had been broken by individuals shooting fireworks at the residence. The landlord took a resolution focused approach and visited the property the next day and it arranged for a maintenance operative to make the window safe the same day and all repairs were completed by 20 November 2019. The landlord appropriately contacted police in relation to the incident however there is no indication that it followed up the complaint and determined if the neighbour was involved. The steps taken by the landlord were appropriate, however given the circumstances of the event and the ongoing ASB at the property the landlord should have taken further steps to communicate with police and take appropriate action where necessary.
It is evident and not disputed that the ASB issues at the property had an impact and caused the resident significant distress. The landlord acted appropriately and took reasonable steps to investigate the resident’s reports. The landlord had a number of informal actions available and based on evidence seen by this Service, the landlord interviewed the resident and alleged perpetrator on a number of occasions and worked with external agencies including police to investigate the reports of ASB. It appropriately issued the perpetrator with a written warning and asked the resident to keep a noise diary and report any instances of ASB in line with its ASB policy. These actions were all in accordance with the landlord ASB policy.
In summary, the landlord’s actions in response to the resident’s allegations of ASB were appropriate and in line with its policies and procedures. However, they fail to reflect the Ombudsman’s experience of similar cases across the social housing sector. The landlord should have used further formal and informal remedies available to it considering the seriousness of some of the reports to address the ongoing ASB at the property. Overall, the landlord’s actions were not fair and reasonable given the circumstances of the case.

Conduct of the landlord’s staff

The resident has expressed dissatisfaction in relation a staff conduct issue. This Service will assess whether the Landlord adequately investigated and responded to the complaint, and took proportionate action based on the information available to it. For staff conduct complaints, landlords should carry out an investigation. For example, the landlord would generally conduct interviews and gather evidence from all parties, making an informed decision based on its findings.
The resident initially raised a complaint about the conduct of a member of the landlord’s staff through the contents of a recording which he had captured. This service was not supplied with a copy of the recording, but it is believed to be discriminatory comments made by the landlord’s staff member against the resident based on his political beliefs. The landlord appropriately investigated the matter and apologised for the contents of a recording and advised that the member of staff had acted in a highly unacceptable manner and fell short of acceptable standards and was unprofessional.
The matter was reviewed by the landlord internally and the member of staff no longer works for the landlord. It is accepted that the landlord investigated the matter and took swift and decisive action against the member of staff in line with its internal policies. Given the seriousness of the remarks and the distress caused to the resident from the landlord’s acknowledged failure, it would have been in line with best practice for the landlord to offer compensation for the distress and inconvenience caused to the resident.
Overall, the conduct by the landlord’s staff was unprofessional and fell short of its acceptable standards. The landlord also failed to offer reasonable redress to put right the situation.

The landlord’s complaint handling and communication.

The documentation provided shows that the resident raised initial complaints to the landlord in a meeting on 28 August 2018. The landlord had an obligation to provide a written response within 10 working days. The landlord supplied a formal response on 6 November 2018, this represents a two-and-a-half-month delay in the landlord providing the resident with its stage one response. The length of time that passed was not appropriate and the landlord failed to provide an explanation for the delay. The resident asked for his complaint to be escalated on 6 May 2019 and the landlord failed to provide a stage two response which was not appropriate or in line with its complaints policy. Overall, the landlord’s handling of the complaint at stage-one was not appropriate or in line with its complaints policy.
On 4 November 2019 the resident raised further complaints to the landlord in relation to a separate but related incident at the property. The landlord issued the resident with its stage one response on 21 November 2019. This represented a small three-day delay however the landlord appropriately wrote to the resident and advised that the investigation was delayed due to the complexity of the case before the 10-working day deadline. This was appropriate and in line with its policy at stage one.
The resident asked for a review of all his complaints in February 2019 and the landlord provided the resident with a stage two review denial on 3 February 2019 advising that it had been more than a year since the original complaint. Under the landlord’s complaints policy, complaints not raised within 12 months are not normally accepted unless there is a good reason for the delay, and in that situation the landlord should use its discretion.
Due to the complexity and ongoing nature of the case it would have been appropriate for the landlord to take a resolution focused approach and issue the resident with a stage two response in line with best practice. The landlord also failed to issue a stage two response in relation to the issues raised by the resident in November 2019 which was within the time frame for escalation. Accordingly, the landlord failed to escalate both of the resident’s complaints in line with the Ombudsman’s complaint handling code.
This Service contacted the landlord on 1 October 2020 and asked it to issue the resident with a stage two response in relation to the resident’s complaints. The landlord issued the resident with its final stage two response and apologised for the delay in responding to the resident’s complaint and failing to escalate his complaint when first requested in May 2019.
The resident also raised a complaint about the landlord contacting him via telephone after he informed it on multiple occasions that he wished to be contacted in writing only. Evidence provided demonstrates that the resident informed the landlord of his preference on 17 February 2020. The landlord proceeded to contact the resident by telephone on at least two occasions on 26 May 2020 and 16 September 2020. It is clear from the documentation provided that this caused the resident significant distress and the landlord should have taken appropriate steps to ensure that all communication with the resident was in writing.
The landlord appropriately offered the resident £400 in recognition of its communication failures and its failure to escalate the resident’s complaint and provide a formal response. Given the circumstances of the case the landlord acted reasonably in acknowledging the mistake, investigating the issue and offering a proportionate amount of compensation to its complaint handling failures.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme there was reasonable redress offered by the landlord for its acknowledged failure in respect of its complaints handling and communications.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in its response to:
1. The conduct by members of its staff.
2. The resident’s reports of ASB at the property.

Reasons

The complaints handling by the landlord was not in line with a timely and efficient complaints procedure at stage one or two of the complaints process. The landlord however offered an apology and £400 in recognition of its failure to escalate the resident’s complaint and for its failure to provide a formal response.
The landlord has taken reasonable steps to investigate the resident’s reports of poor staff conduct and apologised to the resident, however the landlord failed to adequately compensate the resident for the distress and inconvenience caused by its acknowledged failures.
The range of actions taken by the landlord in response to the resident’s ASB reports were not appropriate given the serious and ongoing allegations made by the resident.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay the resident compensation of:
1. £100 in recognition of the inappropriate conduct of the resident’s staff.
2. £150 in recognition of its failure to adequately address reports of ASB at the property.
The landlord is to make this payment to the resident within four weeks and to update this service when payment has been made.

Recommendations

If it has not already done so, the landlord reoffers the resident the £400 previously offered for its service failure in relation to its complaint handling.
It is recommended that the landlord takes steps to carry out staff training to ensure that all staff communicate in a professional manner to ensure similar situations do not occur in the future.