Elim Housing Association Limited (201809906)

REPORT

COMPLAINT 201809906

Elim Housing Association Limited

20 October 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

This complaint is about:
a. the level of the landlord’s service charges for items such as building and grounds maintenance;

b. allegations of discriminatory practice on the part of the landlord;

c. the landlord’s response to the resident’s reports about:
1. service charges
2. discrimination
3. noise disturbance;

d. the landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39 of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
a. the level of charges

b. alleged discrimination towards the resident
Paragraph 39 (g) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, ‘concern the level of rent or service charge or the amount of the rent or service charge increase’
The resident has raised several concerns about the landlord’s charges for services such as cleaning and maintenance. She has said these charges are excessive and unwarranted. She has given examples which, she says, demonstrate a number of regular charges are either unjustified or represent poor value for money.
The Ombudsman cannot determine whether service charges are reasonable or payable. Complaints about the suitability of service charges are therefore outside the jurisdiction of this service. This is because the First Tier Tribunal (Property Chamber) is better placed to consider them. Whilst we are unable to consider this aspect of the complaint, we can assess the landlord’s response to the resident’s queries concerning the charges.
Paragraph 39 (i) says the Ombudsman will not investigate complaints that ‘concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure’
The resident has given numerous examples of alleged discriminatory practices, on the part of the landlord, going back to 2009 and 2010. She has alleged the landlord has treated her differently, particularly in respect of her reports of noise nuisance, based on immutable characteristics such as her gender and background.
The Ombudsman cannot make a finding of discrimination under the Equalities Act 2010 or otherwise, since this is a legal matter that would have to be determined by a court. We are therefore unable to consider whether the landlord has engaged in discriminatory practices towards the resident, but we can consider its response to these concerns.
This assessment will therefore focus on the aspects of the resident’s complaint that fall within our jurisdiction to assess.

Background and summary of events

Background

The resident is an assured tenant, and the tenancy began on 28 September 2009. The tenancy agreement describes the property as a first floor two bed-room flat. The resident has said the property is situated in a converted townhouse incorporating four flats in the main building.
The tenancy agreement sets out the following as a right of the tenant:
‘The tenant has a right to information from the (landlord) about the terms of this tenancy and about the (landlord’s) repairing obligations, its policies and procedures on tenant consultation, housing allocation and transfers and its performance as a landlord.’
The landlord’s 2016 anti-social behaviour policy, which was in place at the time of the resident’s complaint in March 2018, confirms when the landlord will investigate and, if appropriate, take action. Whilst it confirms that excessive noise nuisance may be considered anti-social behaviour, it also sets out the following information:
‘Some situations may be reported to us but will not be dealt with as anti-social behaviour and do not constitute breach of tenancy conditions. These include but are not limited to:
1. Day to day living noise
2. Clash of lifestyle, e.g because someone works nights
3. Children playing…

Where such reports are received, we will discuss this in full with the resident to clarify what we can and cannot deal with, and whether another agency can assist.’

The policy confirms that, in handling reports of anti-social behaviour, the landlord should:
1. consider all available options
2. confirm what actions could and could not be taken
3. adopt an incremental approach to the issue
4. signpost to other organisations if appropriate
The landlord’s relevant complaints procedure document shows it operated a three stage complaints procedure at the time of the resident’s complaint. Although the document acknowledges complaints may refer to bias or prejudice in the way its services are delivered, no specific guidelines are set out as to how the landlord should respond in this situation.
The document sets out various response timescales relating to the landlord’s complaint handling, for example at stage two it should provide a written response within 10 working days of a resident’s review request. It also confirms, following the completion of stage three, the landlord should issue a written response confirming its complaints procedure had been exhausted and include contact details for this service.
The landlord has given evidence that includes the tenancy agreement, its current policy and procedure documentation along with those in place at the time of the complaint, its internal notes and relevant correspondence. It has said that several of its staff involved in the complaint have since left the organisation and, as a result, it cannot retrieve all their previous correspondence.
The resident has given information that includes a detailed timeline, medical information and copies of relevant correspondence.
The resident has a history of severe migraines.

Summary of events

On 19 March 2018 the resident raised a formal complaint with the landlord in relation to noise disturbance. Although neither party has provided a copy of the original complaint wording, we do have the details contained in the correspondence that followed.
On 23 March 2018 the landlord issued a response to the complaint. It referenced a range of suggestions that had been discussed with the resident including coming to an informal arrangement with the neighbours, the use of a noise monitoring app, or diary, to record incidents and contacting environmental health in relation to the noise. The resident’s timeline shows that, around this time, the landlord told her that recordings would be required to establish whether the noise intrusion was classified as day-to-day noise or anti-social behaviour.
The response said it was essential for the landlord to measure the degree of disturbance the resident was experiencing to determine the best way to proceed. It also addressed a concern around the landlord’s failure to ‘act impartially’. This response would not comply with current complaint handling standards given it did not provide a clear, upheld or not-upheld, outcome or details of how the complaint could be escalated in the event the resident disagreed.
On 29 March 2018 the landlord issued a further reply in response to additional details from the resident. The resident said the landlord had shown clear bias and favour in its handling of her reports, and that it had treated her differently in comparison to other residents. To support what she’d said, the resident gave examples dating back to 2015. The landlord replied that it had considered noise nuisance, amongst several other issues, but it did not consider the disturbance to be the primary impetus behind her complaint. The landlord denied it had treated the resident’s concerns of noise nuisance differently but gave the resident the option to discuss her concerns further.
Whilst it is noted the resident’s timeline suggests events were ongoing in the interim period, the next available correspondence seen by this service is dated
8 August 2018. At this point, at her request, the landlord provided the resident with unarchived copies of its invoices for gas, electric and water supplies relating to the resident’s building. It also included a copy of its rent and service charge policy.
The above prompted further correspondence between the parties relating to service charges. This took place until 31 October 2018 with the landlord providing additional information, including its accounts for 2016, 2017 and 2018, along with copies of invoices from its contractors. During this correspondence the landlord explained it had an annual consultation period, a minimum of four weeks, where residents were provided written copies of their proposed service charges and given an opportunity to express their views prior to the charges being implemented.
On 31 October 2018, after the landlord said it had responded reasonably to her complaint about service charges, the resident approached this service with details of her complaint and a case was opened. At this stage her correspondence with the Ombudsman only referred to her concerns about the landlord’s charges.
On 18 December 2018 the resident made this service aware she was unhappy with the landlord’s complaint handling given she had not received a complaint response in line with its previous correspondence. She was previously told the response would be received by 7 December 2018, but the landlord later said it needed more time to investigate. This was agreed by the resident, so a new response deadline,17 December 2018, was set. Failure to meet this deadline as agreed prompted the resident’s contact with the Ombudsman.
On 27 March 2019 the landlord notified the resident she would be receiving a refund of £317.65 in relation to gardening and cleaning services. It said it had found no grounds maintenance was carried out by its contractor for the year 2018-2019. Further, cleaning sessions had been missed in the communal area and issues around recording and quality had been identified. The landlord said all residents would be receiving a proportional refund as a result of its findings.
On 28 October 2019 the resident accepted the landlord’s offer of £1500 compensation in relation to her efforts and input into the landlord’s fire alarm and fire service procedures. Her acceptance correspondence said she would be writing to the landlord separately in connection to her concerns around the landlord’s historic discrimination towards her.
On 16 January 2020 the landlord increased its offer to £2000 in full and final settlement of all complaints predating the landlord’s letter. The landlord’s offer was based on its view that the preceding discussions had been lengthy and complex, and involved subjective issues. The landlord said it had not seen sufficient evidence of discrimination but confirmed its intent to draw all previous matters to a close through its increased offer. This represented an offer of £500 compensation in respect of the unresolved complaint issues.
On 10 August 2020 the resident acknowledged the landlord’s offer of £2000 but said, she felt, further negotiation for an increased amount would be appropriate in respect of the fire issues, discrimination/unequal treatment, and service charge ‘maladministration’ she had brought to its attention. She included a timeline of the alleged discrimination for the landlord’s consideration.
On 30 September 2020 the landlord said it would not be reviewing its offer of compensation. Although it had identified service issues, during its correspondence with the resident, it had come to the view that these did not imply discrimination. The landlord later confirmed this correspondence represented its final response to the resident’s complaint. This was issued more than two and a half years after the initial complaint was raised.
On 1 October 2020 the resident notified the Ombudsman of her concerns around discrimination. This was on the basis she had previously discussed this issue with the landlord but had been unable to resolve it through the landlord’s internal complaints procedure.
On 4 November 2020 the resident notified this service of concerns around the landlord’s response to her recent report of smoke permeating her flat. The concerns were raised in the context of reported antisocial behaviour but were presented as further evidence of discriminatory practice on the part of the landlord. The resident later declined the landlord’s offer to investigate this as a formal complaint.
In February 2021 the resident clarified the outstanding complaint issues for this service to address following completion of the landlord’s internal complaints procedure. At this stage, her primary concern related to unequitable and discriminatory behaviour towards her by the landlord. However, she also said the landlord had failed to address daily noise disturbance from her upstairs neighbours despite her repeatedly reporting the issue. This was more than two years and ten months after the landlord issued a formal response to these concerns.
In September 2021 the resident told this service the minimum level of compensation she would accept is £5000 given her complaint encompasses both discriminatory treatment and service charge non transparency along with maladministration of both tenant and Department of Work and Pension funds. The resident did not raise any concerns relating to the landlord’s handling of fire safety issues with this service during the above timeline.

Assessment and findings

It is recognised that the resident has experienced difficulties with her health, and that she has spent considerable time and effort to pursue her various concerns with landlord. Further, that a refund of excess charges was issued on the back of these efforts along with a significant offer of compensation.
In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this service’s opinion, fair in all the circumstances of the case.
The Ombudsman’s Dispute Resolution Principles are:
1. Be fair
2. Put things right
3. Learn from outcomes

This service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

In relation to the level of service charges, we can assess the landlord’s response to the resident’s concerns. In this case, the evidence shows the landlord was proactive in engaging with the resident about the issue. This is because the correspondence between August and October 2018 demonstrates it gave the resident a substantial amount of information in line with the rights set out in the tenancy agreement. The information was provided with explanatory notes concerning the format of the data, and the landlord’s operating procedures to assist the resident in interpreting the information.
When the resident requested additional information, the correspondence shows this was provided reasonably promptly without any unnecessary barriers being raised. The resident has confirmed she was aware the information was requested outside of the annual consultation period, nevertheless, the landlord demonstrated transparency and complied with the terms of the tenancy agreement.
The evidence also shows the landlord’s investigation into service charges, prompted by the resident, resulted in a refund being issued for unperformed maintenance and substandard cleaning work. Its correspondence shows the landlord undertook to conduct improved monitoring of its contractors going forwards as a result. Given the above, the landlord put things right by refunding the excess charges and demonstrated learning by implementing additional monitoring. The landlord therefore acted appropriately in respect of this aspect of the complaint.
Regarding allegations of discriminatory practices, it is noted that this is a key aspect of the resident’s complaint which provides the impetus for her preferred outcome. Whilst we are unable to reach findings as to whether discrimination has occurred, we can consider the landlord’s response to the resident’s concerns in conjunction with its relevant policies. However, the landlord’s policies did not give details of how it should respond to situations concerning allegations of discrimination, bias, or similar issues.
It is recognised that the resident gave the landlord her full timeline concerning allegations of discrimination while the complaint was at the final stage of the landlord’s complaints process. However, both the landlord’s correspondence and the resident’s timeline show her concerns around this issue were considered, albeit worded in different ways, by different members of the landlord’s staff at the two preceding stages of the process. This was in line with the landlord’s complaints policy and, given the nature of the concern, represents a reasonable approach to ensure the matter was given sufficient hearing internally.
It is noted that a significant portion of the resident’s allegations relate to the landlord’s handling of another resident’s reports of intrusive noise, which the resident was able to observe, in comparison to its handling of her own reports. However, for data protection reasons, we are not able to request or consider any evidence concerning the landlord’s interaction with another resident as part of our investigation. As a result, the landlord’s policy and procedure documents are an appropriate frame of reference for this assessment.
The information we have seen shows the landlord engaged with the resident’s allegations, gave them reasonable consideration and responded. This was appropriate action on the part of the landlord. We have seen no contrary evidence to show that its response to the resident’s allegations was inappropriate.
In relation to the landlord’s response to the resident’s reports of noise nuisance, the evidence shows the resident was provided with an explanation as to the difficulty the landlord faced in respect of any disturbance caused by her neighbours’ ordinary usage of their property or lifestyle. Whilst it is acknowledged that no evidence has been presented to show the resident was given a written copy of the landlord’s anti-social behaviour policy, both the landlord’s correspondence and the resident’s timeline show appropriate discussions around it took place at the time of her complaint.
It is clear the landlord’s approach was incremental because it confirmed the severity of the disturbance would need to be measured to establish the best way to proceed. Further, the resident was given a range of options including the use of a diary, or noise monitoring app, and she was signposted towards notifying environmental health as an alternative. These were all appropriate actions taken in line with the landlord’s anti-social behaviour policy. The evidence we have seen shows the resident declined to make use of the tools proposed by the landlord.
Given the above this assessment finds the landlord’s response to the resident’s reports were appropriate and in line with its policy and procedures. However, it is noted that the landlord updated its procedures in October 2020 to include a specific noise nuisance policy. This indicates it is seeking to learn from outcomes and has identified a challenging position between everyday noise and anti-social behaviour.
In relation to the landlord’s complaint handling, whilst it is acknowledged that the landlord was dealing with several of the resident’s detailed concerns at the same time, a period of more than two and a half years to conclude its internal complaints procedure was inappropriate. Separating these concerns as they arose would have increased the landlord’s capacity to manage its timeline. It is recognised that the landlord also updated its complaints procedure in November 2020.
It is noted the formal responses seen by this service would not meet the standards currently required by the sector for a variety of reasons. However, given the Housing Ombudsman’s Complaint Handling Code was not introduced until July 2020, with an implementation period running until 31 December 2020, it would also be unreasonable use the code as a benchmark in this case.
Nevertheless, it is clear, based on its lack of content and finality, the landlord’s final response did not meet the requirements of its own complaints procedure. Further, since the landlord’s relevant policy document did give various timescales, the overall time taken shows several failures have occurred in respect of the landlord’s responses. That said, from the resident’s timeline, there is missing correspondence that may allow the source of the delays to be clearly identified, but, given the landlord’s procedures have since been updated, for the purposes of this assessment it is more important to gauge the impact of delays on the resident.
Broadly, the evidence we have seen shows that, contrary to the landlord’s procedure, the resident’s complaint journey was often open ended with invitations to further discussions, or additional meetings, being provided rather than firm conclusions or escalation rights. Further, there is evidence to show the landlord exceeded deadlines that it gave to the resident.
However, the resident was given a variety of options to address her concerns in relation to noise nuisance, which it is reasonable to conclude was affecting her standard of living, at the beginning of her complaint. Further, she notified the Ombudsman of this issue around one year and eleven months after her complaint was opened with this service. As a result, the above represents complaint handling service failure on the part of the landlord.
It is acknowledged that the landlord offered the resident £500 (out of a total of £2000) to resolve any issues predating its final response letter. Further, that the timeline shows this offer could have addressed the issues around the landlord’s complaint handling. However, from the wording of its correspondence, there is no indication that it has considered or redressed the above identified service failure in this figure. On that basis, it is appropriate for the landlord to treat the inconvenience the resident has been caused by its overall response time, and associated complaint handling failures, separately in the form of a distinct offer of compensation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports about:
1. service charges
2. discrimination
3. noise disturbance
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s complaint handling.

Reasons

This service is unable to assess the level of the landlord’s service charges as it is not within our jurisdiction to do so.
This service is unable to make findings concerning discrimination under relevant legislation such as the Equalities Act 2010.
The evidence shows the landlord has acted appropriately in response to the resident’s concerns, and reports about service charges, discrimination and noise.
The evidence shows service failure on the part of the landlord in respect of its complaint handling.

Orders and recommendations

Orders

The landlord to treat the above identified service failure separately (from its previous offer of £2000 in total compensation) with a distinct award of £100 for the inconvenience caused by its protracted complaint handling in this case.

Recommendations

The landlord to review its current complaints policy, in conjunction with the above report, to ensure a similar complaint journey would be prevented under its current procedures.
The landlord to re-offer its previous award of £2000 relating to various other issues.