Cognatum Estates Ltd (201914352)

REPORT

COMPLAINT 201914352

Cognatum Estates Ltd

15 February 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

1. The complaint is about the landlord’s response to:
   1. The resident’s reports about a member of staff.
   2. The related complaint.

Background

2. The resident is a leaseholder of a flat in a purpose-built retirement development managed by the landlord. The landlord has not advised of any vulnerabilities recorded for the resident, but the resident has stated he suffered a stroke in 2020.
3. After an incident with a member of landlord staff, the resident submitted a complaint on 15 November 2019 that the individual was aggressive and angry towards him. The landlord responded on 17 January 2020 having taken statements from the member of staff concerned and a colleague. The resident escalated the matter stating that the witness was unreliable, and that the resident’s wife was also present. The landlord responded on 2 April 2020 and said that given the Covid lockdown, no response would be sent until the crisis had passed.
4. Following contact from this Service, the landlord advised in June 2020 that its investigation had commenced. The landlord later said that it thought it insensitive to contact the resident when it was aware he was unwell, but it would now investigate and respond.  A stage two response was issued on 28 October 2020 and the landlord confirmed the resident’s wife’s statement had been considered, but without independent evidence, it was unable to find either way.  The landlord said the member of staff was now retired and appeal rights to this Service were given.
5. Following recovery from a stroke, the resident chased the landlord for a further review on 11 October 2021. On 25 November 2021, the landlord reminded the resident of the appeal rights to the Ombudsman as it considered the matter closed. The resident felt he had not been given a third stage response from the board of directors, as allowed for in the complaint procedure in place at the time of his initial complaint. Following further contact by this Service, the Chairman of the Board responded on 3 February 2022 on behalf of the board and said that if the resident wished to submit the new evidence he mentioned, the case would be reopened. The resident replied that he wanted the third stage complaint to be investigated by the board and would consider the matter closed by an apology from the landlord not only to him, but to other residents who had reported aggressive behaviour by the member of staff.
6. A further response was issued on 24 March 2022 which offered sincere apologies for any distress caused by the incident but did not provide appeal rights.  Following further correspondence from the resident, the chairman wrote again on 13 April 2022 and referred the resident to this Service. The resident feels the apologies from the chairman are inadequate as they do not apologise for the behaviour of the member of staff.

Assessment and findings

Scope of the investigation

7. The Ombudsman’s role when investigating complaints is to assess the evidence that is available and reach a conclusion as to whether the landlord has complied with its duties and obligations in its response to the complaint. This investigation understands that the resident found events involving a member of staff distressing, but notes that there are differing accounts of these events. There can be different interpretations of events, and where there are two different verbal accounts of an incident, it is hard for this Service to make a definitive decision and decide one is more true than is the other. On the evidence this investigation has seen, this Service is unable to determine what happened, and therefore this investigation focuses on whether the landlord’s response to the resident’s report was reasonable in all the circumstances.
8. The resident has referred to a previous incident with the same member of landlord staff in 2018, which he felt should be considered in the landlord’s investigation. Given the time that has elapsed, and that the resident would have had the option to pursue a formal complaint at the time, this incident is not included in this investigation. This is in accordance with paragraph 42 (c) of the Housing Ombudsman Scheme which says that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, were not brought to the attention of the landlord as a formal complaint within a reasonable period which would normally be within six months of the matters arising. This investigation concerns only the landlord’s response to the incident reported in November 2019.
9. The resident has asked for an apology to be given to three other leaseholders whose statements he copied to the landlord. This is not within the scope of this investigation which concerns his complaint only. If those individual residents wish to formally complain and escalate the matter to the Ombudsman they have the option do so, although this may now be limited given the expectation set out above that a complaint should be brought within a reasonable time of events arising.

The landlord’s response to the resident’s reports concerning a member of staff

10. In this instance, there is no evidence that the matter was raised by the resident prior to submitting his complaint. In effect, this means that the landlord’s investigation into the incident and the complaint investigation are the same process.
11. It has been evidenced that the landlord acted quickly to take a statement from the resident and the contractor present. As the matter was straightforward concerning a single dialogue between two people, the Ombudsman would not expect to see a particularly detailed investigation as this would not be necessary. It was the landlord’s role at this stage to speak to the parties concerned and show that it had considered the evidence and whether any further action was required to resolve the matter, if possible, to the resident’s satisfaction.
12. The statements taken by the employee and other witness expressed the opinion that it was the resident who was inappropriate on the day of the incident, as opposed to the statement from the resident and his wife who said they were shouted at by the employee who was aggressive towards them. The landlord did not uphold the complaint and said that on balance it could not conclude that the employee was aggressive. It also stated that the employee had a previous good record with the company. It offered the resident the option to approach the Operations Manager directly with any further issues.
13. The resident pointed to reasons he believed the contractor may not be considered independent and asked that his wife’s statements be included in the investigation. There were then some delays in the complaint process which are discussed below. The landlord reviewed the case again to include the statement from the resident’s wife, but said it was still unable to state either way. The landlord expressed its hope that the matter could be set aside now that the member of staff had retired.
14. As the complaint progressed, the landlord’s chairman asked the resident what resolution he was seeking and the resident said he wanted an apology not just for him, but three other residents who had reported issues with the member of staff. An apology was sent to the resident by a senior manager and the chairman wrote to the resident from his holiday to express his wish that the matter be positively resolved. The chairman wrote once back in the office reiterating the apologies that had been made for any distress the matter had caused.
15. This Service has assessed whether the landlord’s actions were in accordance with the Ombudsman’s ‘dispute resolution principles’, that is to have a process that seeks to put things right for residents, is fair, and that learns from outcomes. In this instance, the landlord obtained evidence from those who witnessed the event, it advised it was unable to find either way and gave the resident alternative contacts to avoid any repeat of the problem. The landlord agreed that it would have been better had the member of staff walked away. It asked the resident what he required to resolve the matter, given the individual had left, and apologised on several occasions, including from the chairman of the company.
16. From the evidence submitted, the landlord has shown it was fair and sought to put things right. Ultimately the landlord did not feel that it could agree with the resident, so in the circumstances there was no further action it could reasonably take. The landlord’s complaint responses appear balanced and respectful in tone.
17. Whilst this Service does not doubt anything the resident has said, it is hard to see what the landlord could have done when it was given a directly opposite version of events from its staff. Its apologies have been profuse and whilst the resident does not believe them to be sincere, there is no realistic way that the Ombudsman can insist on a further apology which would satisfy the resident. It is not reasonable that the landlord apologise to unrelated third parties as a remedy to this particular complaint, so this is not something the Ombudsman would look to make an order for.
18. This has clearly been a very distressing matter for the resident and his wife. It has been shown that from the day of the initial conversation with the estate manager that the resident felt he was spoken to in an unacceptable manner, and this is recognised. The situation can only have been exacerbated by first the Covid pandemic lockdown and then the resident’s own health problems. However, the landlord has taken all reasonable steps to address the problem short of agreeing with the resident’s view of the incident, whilst not dismissing that the incident had been difficult for the resident and his wife.
19. The Ombudsman is satisfied that the landlord took proportionate and appropriate action in relation to investigating the concerns raised by the resident; and considering them alongside its duties and obligations as a landlord.

The landlord’s complaint handling

20. The landlord’s complaints procedure effective September 2019 says that at stage one of the process, the relevant operations manager will undertake an investigation and provide a detailed response with any proposals to resolve the matter in 10 working days. If the resident remains dissatisfied, an executive director will review the complaint and issue a detailed response at stage two within four weeks. The procedure then says the resident can escalate further and a member of the board of directors will respond at stage three of the complaints process within two weeks.
21. The revised and current complaint procedure effective April 2021 removed the third stage and says stage two responses should be investigated by a director of operations (or suitable member of the senior team as the company considers appropriate) before referral to the Ombudsman.
22. Page seven of the current procedure says that ‘Relations between the company and complainants sometimes break down while complaints are under investigation and there is little prospect of achieving a satisfactory outcome. In such circumstances there may be nothing to gain from following through all stages of the organisation’s complaints procedure. In these circumstances The Independent Housing Ombudsman may be prepared to consider complaints before complaints procedures have been exhausted. If (the landlord)’s consideration of the complaint is ended we have the option of ending all communication with the complainant on the issue and, where appropriate, refer the complainant to the Ombudsman.’
23. Page nine of the procedure relating to changes due to Covid says ‘Timescales for addressing complaints will be extended. This will be communicated to complainants and will be based on executive judgement of the priority of the complaint and the resources available.’
24. The first part of the assessment above covers the action taken to investigate the issues complained about. The following covers the timescales and procedure in terms of the complaint stages followed by the landlord.
25. The resident feels that the landlord should be applying the complaints policy in place when his complaint was submitted, and the Ombudsman sees no reason this should not be the case. Where the landlord is operating one complaints policy and this changes part way through a complaint, it would be fair in all the circumstances that it continues with the process that was in place at the time of the complaint. As such, it was reasonable for the landlord to offer a stage three response in this case.
26. In this instance, the first complaint response was outside of the timescale given by approximately six weeks. Although there is an implication from the statements collected that the landlord was investigating the issues during this time, there is no evidence that the resident was kept informed of the delay in the response. Related to this, there has been no ‘complaints log/history’ provided by the landlord to support its process or provide background or internal correspondence. It may be that phone calls were made updating the resident of the delay, but this has not been shown.
27. The resident quickly said he wished to escalate the complaint, but the response was not issued before the national lockdown in March 2020. Therefore, there was a second delay of approximately four weeks before the landlord, not unreasonably, advised the resident on 2 April 2020 that matters were on hold during the crisis.
28. The landlord advised this Service in June 2020 that the investigation had commenced. In October 2020, the landlord said that it had not been able to focus on the investigation due to its priority in keeping staff and residents safe, and it had also thought it insensitive to contact the resident on this issue as it was aware he had been unwell. It said it would now investigate and its response was sent on 28 October 2020, six months after the resident’s request for a stage two.
29. While it is accepted that the landlord will have experienced challenges in delivering its normal service during the Covid pandemic, it was a failure on its part to not communicate with the resident during this extended period. The issue over the resident’s health is understood, and the landlord’s motives in not writing during this time are not doubted. But a brief letter advising that the issue had not been forgotten and asking the resident to make contact when he was ready to discuss the matter would not have been unreasonable in the circumstances.
30. That said, the stage two response in October 2020 apologised for the delay and gave appeal rights to the Ombudsman. At this point, it would seem that the three-stage complaint procedure was still in effect (no alternative complaints procedure has been submitted by the landlord to contradict this) as the online procedure at the current date is described as effective April 2021. There is no equivalent reference in the 2019 procedure to the later version which allows the landlord to end the process early. Overall, it would have been appropriate for the stage two complaint response to offer the resident the option of referring to the board of directors for the third stage of the complaints process.
31. Due to his illness, the resident was unable to appeal against the stage two response until October 2021 and the landlord responded in November 2021 to repeat the appeal rights to this Service. The resident was concerned that the third stage of the complaint procedure had not been used and the landlord again referred him to the Ombudsman in view of the new policy.
32. Although the complaints procedure 2019 says that the resident may refer to the board of directors, it also says that a review will be taken by a ‘member’ of the board. The letter of 3 February 2022 from the chairman asked the resident what he would like as an outcome and said the matter would be reviewed again, but under the new process. A further response from the director of operations in March 2022 gave the landlord’s final response but did not give appeal rights to this Service as it should. However, by this time the resident was in communication with the Ombudsman for some time so this oversight would not have had a significant impact.
33. The resident replied on the 12 April 2022 that he wanted his staff complaint dealt with by the board of directors, but as above, this was not necessary under the original complaint procedure, only that a ‘member’ of the board respond. The policy says that the resident may refer the issue to the board of directors, but not that the entire board should investigate or respond.  In effect, the third stage response occurred on 13 April 2022, when the chairman of the board said that the landlord had tried various ways to resolve the issue, and appeal rights to this Service were given. There was therefore a delay of over five months from 11 October 2021 when the resident requested a review of his complaint, until 13 April 2022 when the chair of the board of directors responded, which the original complaint procedure says is done within 2 weeks.
34. In terms of the resident’s progress through the complaints process, the letter from the Director of Operations dated 7 December 2021 was technically third stage response, although not from a member of the board. The email said, ‘after further consideration and on balance we believe that your next step if you wish to pursue your complaint is to refer to the Housing Ombudsman’. This means that the resident was able to escalate the matter to the Ombudsman at any point after the stage two response in October 2020 as he was given the relevant appeal rights to allow for this. Whilst the resident wanted the third stage allowed for in the landlord’s complaint process, any detriment caused by the landlord’s delay was minimal given that he was already in contact with the Ombudsman.
35. However, overall, it is evident that the resident will have been caused some unnecessary distress and inconvenience, and it is fair in all the circumstances that the landlord make an appropriate payment of compensation in respect of the various periods of delay during the complaint process. It should also reflect that it would have been in accordance with the procedure in place when the complaint was made to have provided a third stage response from a member of the board of directors earlier. This should be adjusted to reflect that the resident was able to proceed to this Service at any stage after October 2020 (once his health allowed) and avoid much of the delay.
36. The sum of £100 is the maximum level of redress suggested by the Ombudsman for cases of service failure which were not appropriately acknowledged by the landlord. This applies where the impact of the service failure may not have affected the overall outcome, and includes distress, inconvenience and delays in getting matters resolved, and is considered appropriate in this case.

Determination

37. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
    1. No maladministration in the landlord’s response to the resident’s reports about a member of staff.
    2. Service failure in the landlord’s handling of the related complaint.

Orders

38. The landlord should:
    1. Pay the resident £100 in respect of its handling of the complaint.
    2. Remind relevant staff of the importance of always including appeal rights at each stage of a complaint response and of keeping residents informed of any delays in the process (and recording such actions on the complaint file).
39. The landlord should provide evidence of compliance with the above within four weeks of this decision.