Gentoo Group Limited (202128308)

REPORT

COMPLAINT 202128308

Gentoo Group Limited

10 March 2023

Our approach

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

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

The complaint

The complaint is about the tone, content and language used in correspondence the residents received from the landlord.

Scope of investigation

The residents’ complaint to the landlord held that breaches of the Data Protection Act 2018 had occurred in its use of their data. Complaints relating to the management of data are properly within the jurisdiction of the Information Commissioner’s Office (the ICO) (https://ico.org.uk). The residents may wish to approach the ICO if they wish to pursue this aspect of their complaint. This investigation will not therefore make a determination on any reported breach of the Act but will instead consider whether the landlord responded reasonably to the residents’ concerns and in accordance with its policies and procedures.
It is noted that the residents have said the landlord made “slanderous” comments about them, defamed them, and committed libel. Slander, libel, and defamation are legal definitions, and it is outside of this Service’s remit to determine whether these were or were not committed. Rather, this is a matter more appropriately suited for consideration by the courts. The residents may wish to seek independent advice if they wish to pursue this aspect of their complaint further. This investigation will focus on whether the landlord responded reasonably to the residents’ dissatisfaction with the content of the information they received.
It is concerning that the residents reported inaccuracies in information the landlord provided to its solicitor as part of their disrepair claim. In accordance with the Housing Ombudsman Scheme, we are unable to consider complaints where it is fairer, more reasonable, and more effective to seek a remedy to issues with solicitors’ information for disrepair claims through the courts. Therefore, we cannot make a determination on the accuracy of the information. However, it will be considered whether the landlord’s response to the residents’ complaint about this was fair and reasonable.

Background

The complaint has been raised by joint tenants of the landlord, a housing association. They will be referred to in this investigation as ‘the residents’. During the tenancy sign up, the landlord recorded that one of the residents had a long-term disability and mobility issues.
Having made a subject access request (SAR) with the landlord, the residents subsequently raised a stage one complaint on 7 January 2022 about the content of some of the landlord’s correspondence contained in the SAR documents, which they considered to be “disgusting” and libelous. On 25 January 2022, they provided the landlord with copies of the specific correspondence they were unhappy with, which was dated between 31 October 2016 and 16 March 2020. The residents highlighted that inappropriate language or opinions were expressed in some emails and an email used a maiden name inappropriately. They said that there was erroneous information relating to a tenancy warning and an allotment, and there was a “black mark” against them for a rent payment which temporarily went missing. The residents also raised concerns about the language used in an email exchange between the landlord and the police.
The complaint was progressed through stage one of the landlord’s complaints procedure, escalated by the residents and the landlord issued a final response on 2 March 2022, followed by an additional response on 22 March 2022. In these responses the landlord acknowledged that inappropriate language had been used and it apologised for this. The landlord provided context to some emails and explained that some language had been used by the police over which it had no control. It could not investigate one comment related to employment from 2016 due to the staff member no longer being an employee. The landlord explained that one resident’s maiden name had been used in an email prior to them changing the name on the tenancy, and that correspondence about an allotment and tenancy warning were not addressed to them and had been provided in error. It confirmed there were no “black marks” against the residents’ rent account and offered them £100 compensation for any distress they had been caused.
The residents raised a new stage one complaint with the landlord on 1 April 2022 in which they raised dissatisfaction with further issues found in the SAR documents. They said the landlord had provided incorrect information to its solicitor and the police and had inappropriately shared their information and recorded ill health in the household. The residents questioned the use of impersonal language and the relevance of housing issues discussed in internal emails which they felt were “sarcastic”. They said that further inappropriate language had been used and the landlord had misspelled one of the residents’ names. The residents expressed dissatisfaction with a visit they had received the previous year when the property was recorded as void, which caused them distress. They also questioned why it was recorded that they were unable to benefit from a solar panel scheme.
The landlord responded at stage one on 21 April 2022 and the resident escalated the complaint a week later as they were dissatisfied with its explanations. It provided its final response to them on 31 May 2022 which requested more information on the information it had passed to its solicitors that the residents felt was inaccurate. The landlord explained that it recorded ill health in the household to enable it to make reasonable adjustments for the residents. It disputed that it had provided incorrect information to the police and suggested they approach the police to query this. The landlord apologised for any offence taken by the wording of its emails and re-offered the £100 compensation it had offered in its response to the residents’ previous complaint.
On 15 June 2022, the landlord offered to arrange a meeting with the residents to address their concerns, which they refused as the meeting would not be electronically recorded. The landlord increased its offer of compensation to £200, and on 23 June and 12 July 2022, it responded to further contact from the residents to clarify that they had not provided any new information and its offer of compensation, and a meeting still stood.
On 27 August 2022, the residents informed the Ombudsman they remained dissatisfied with the landlord’s response. To resolve the complaint, they stated they wanted a full apology and to be compensated for the stress and inconvenience the landlord’s failings caused.

Assessment and findings

The privacy statement on the landlord’s website confirms that residents have the right to access the information it holds on them at any time. Furthermore, the landlord’s tenant handbook states that tenants have the right to be treated fairly and with respect. The evidence provided to this Service indicated that there were several occasions where the language used by the landlord in its internal communications was not appropriate for the situation. While internal communication may not be addressed to a resident, it is not appropriate for communications to contain negative references to residents or to express opinions which were not factual. Doing this may lead to an unfair provision of service to the residents which would not be in accordance with its commitment to treat tenants fairly and with respect.
Therefore, it was inappropriate and unprofessional that the landlord:
1. Said that “alarm bells are ringing” in reference to the residents when liaising with the police on 31 October 2016.
2. Described one resident as “awful” on 6 February 2020.
3. Described one resident as “a nightmare” on 16 March 2020.
4. Stated that one resident called “every other day” on 12 March 2020.
5. Opined that one resident was “just frustrated” in an email on 24 July 2018.
6. Stated that one resident required an appointment letter as they were “very forgetful” in an email on 25 July 2017.
While the wider context of the above comments has not been made available to the Ombudsman, the comments in themselves would have led to distress for the resident and damaged the landlord/tenant relationship. It was therefore appropriate for the landlord to recognise in its complaint responses that these were likely to cause distress and it acted reasonably by offering an apology for these comments. The landlord did not apologise explicitly for the comment about “alarm bells are ringing” however its assurance to the residents that the staff member responsible was no longer an employee indicated that it did not view this as acceptable behaviour from its staff.
The residents have said that the content of some correspondence displayed a sarcastic tone and was intended to mock them. While their feelings about the tone of language used by the landlord in its correspondence is acknowledged, it must be considered that wording may be subject to interpretation and opinions on the tone used may differ. It is often not possible to determine the intention of the writer when the communication is not considered within a wider context. However, it will be considered whether any language used by the landlord was accurate and appropriate for the circumstances.
The residents were dissatisfied that an email trail from 24 July 2018 referred to one resident as ‘he’ instead of using his name. While this may have seemed impersonal and the resident may have preferred the landlord to use his name rather than a pronoun, this was not evidence of the landlord using inappropriate language. Nevertheless, the landlord took the proactive step of apologising in its stage one complaint response on 28 January 2022, recognising the impersonality may have led to distress, and explained that the wording was used by staff who were already aware of the resident. Given that the email trail in question contained the resident’s name, this was a reasonable response from the landlord.
The residents said that the landlord incorrectly used one resident’s maiden name in error in an email on 24 July 2018, despite the residents marrying in November 2017. The landlord’s stage one response to this clarified that they did not change the name until the name-change process was completed on 1 November 2018. This was a reasonable explanation as the landlord would not be expected to use a different name for a tenant until it had received the appropriate documentation to update its tenancy records. Therefore, there was no evidence of a failure in this respect.
The residents also said that a “sarcastic remark” was made in an email dated 2 December 2016 which was reputationally damaging and led to one resident not gaining employment. The comment said one resident “has worked for us before? Great with bricklayer but can’t clean so we will pass on him this time”. The landlord’s final stage response on 2 March 2022 clarified that the email discussed an application for employment in 2016 which it could not investigate further due to the time that had since elapsed. It apologised for any distress caused. This was a reasonable response, given that the remark was appropriate within the context it was made, and the age of the email prevented further investigation.
Further emails were highlighted by the resident from 29 July and 24 November 2020, and 4 August and 1 September 2021 where the landlord noted that the residents “may have a solicitor involved”, “there is ill health in the family”, “this man has a disrepair claim and this will be his fourth formal in a year” and a complaint they made was “vague”. They were unhappy with the use of “this man”, being described as “vague” and that some of these sentiments were made sarcastically. They also believed that it was not appropriate to note that a solicitor may have been involved or that there was a health vulnerability in the household.
In response to the above points, the landlord’s stage one response on 21 April 2022 explained that it shared information between its departments to ensure the consistency of its responses. The landlord also explained that it recorded ill health to ensure that it could provide reasonable adjustments as necessary. It apologised for any offence caused by the use of the word “vague”, explaining that this was to record that it had little information on the residents’ report, and it had followed up on this to seek more information. These were reasonable explanations and from the information seen by this Service, it appears the term “vague” was related to a complaint, rather than either of the residents personally.
In and of themselves, the above comments did not demonstrate that a failure had occurred. It is sometimes appropriate for a landlord to note the wider circumstances surrounding correspondence or a report to enable it to provide a service which is appropriate to the situation, and it is good practice for a landlord to share information within teams and external agencies where appropriate. A landlord would be expected to consider when there is ill health in a household to ensure that reasonable adjustments are made in its provision of service. There was no evidence that its mention of ill health was inaccurate, given that this was recorded at the start of the tenancy, or that the reference was made in a derogatory fashion. As mentioned above, the perception of sarcasm is subjective and there was no evidence that the notes made above were ill-intentioned.
The residents also expressed concern that two pieces of documentation – relating to a tenancy warning and an allotment – had been incorrectly attributed to them, and that one of the residents’ names was misspelled in an email sent on 4 August 2021. The landlord apologised for these issues and attributed them to human error. Given that there was no evidence of an excessive number of similar errors within the SAR information it provided, or that significant detriment had been experienced by the residents as a result of these errors, the landlord’s acknowledgement of the mistakes and its offer of an apology was a reasonable response in the circumstances. A recommendation will be made for the landlord to review its recordkeeping procedures to prevent future occurrences.
In response to the residents’ concerns that the landlord had contacted them in 2018 about a rent payment that it had not received, the landlord advised in its stage one response that this issue had been due to a delay with processing payments. It clarified that this had been resolved on 18 January 2018, it confirmed that the payment and explanatory notes were visible on the rent account and there was no “black mark” against the residents’ tenancy, as they had contended in their complaint.
However, the resident submitted an escalation request on 14 February 2022, asking for proof that any ‘black mark’ was removed as they were not reassured by the landlord’s explanation. While it is noted that the residents provided no evidence of a negative mark against the tenancy for the landlord to disprove, this point was not addressed by the landlord in its final stage response, and it would have been helpful for it to request any evidence the residents had of a ‘black mark’ against them to provide greater clarity. It therefore failed to respond fully to the complaint, missing an opportunity to resolve the matter.
The residents’ further stage one complaint, submitted on 1 April 2022, referred to an email from 9 March 2017 which identified that their property’s roof tiles were unsuitable for participation in a solar panel scheme. The residents contended that subsequent structural inspections of their property had found no defects and they stated other similar properties had been able to benefit from the scheme. They therefore felt they had been excluded unfairly. The landlord’s response on 21 April 2022 apologised for any conflicting information they were given and offered to contact them about future participation in the scheme. After the residents escalated this aspect of the complaint but did not provide any new information, in its final response on 31 May 2022, the landlord requested more information to investigate the issue further.
It may have been useful for the landlord to review any reports or inspections relating to the property’s suitability assessment for the solar panel scheme as part of the investigation of this issue. It may also have been useful for it to clarify whether the inspections referred to by the residents indicated that the property’s roof was indeed suitable; a property may be structurally sound, but this does not automatically make it suitable for certain installations. It is appreciated that these were historical issues from five years prior to the complaint and the landlord should have clarified in its response if the age of the issue had posed difficulties in the investigation. Therefore, the landlord could have provided more clarity in its response to the residents, rather than putting the onus on them to provide more information on the matter.
The landlord responded appropriately to the residents’ dissatisfaction with comments made by the police in email exchanges with the landlord. It said it had no control over the content of communication from third parties and suggested they approach the police directly about any comments they were unhappy with. This was a reasonable position for the landlord to take and there was no evidence of failure on its part as the landlord had not been the author of the comments and was not the source of the communication. The landlord also explained that its reference to “fourth formal in a year” related to complaints and directed the resident to the content of the SAR for the information referred to. This was reasonable given that a SAR response provides all the information held by a landlord in connection to a tenancy and the residents’ query was a request for this information.
In response to the resident expressing dissatisfaction with the landlord mistakenly recording their property as a void, which it had already investigated in another complaint, it was reasonable for it to direct them back to its complaints responses rather than reinvestigate the matter. This was in accordance with its complaints policy which states that it was not required to investigate a complaint which had already exhausted its complaints procedure.
In correspondence with this Service the residents advised that they sought £1,200 compensation to resolve the complaint. This is a significant figure, and it must be clarified that when compensation is awarded, it is not to punish the landlord, or to award ‘damages’ in the way that a court might. The purpose of any compensation awarded is to proportionately ‘put right’ any identifiable detriment experienced by the resident resulting from any failures exhibited by the landlord.
It is clear that the language used by the landlord in some of its communication was not appropriate and resulted in distress for the residents. There were also instances where the landlord could have provided greater clarity on the issues raised, although the Ombudsman recognises that some of these issues were historic, and it would be difficult to investigate these after several years. The landlord acknowledged its failings and offered apologies to the residents, recognising that its communication had caused them distress. The landlord’s revised offer of £200 compensation on 15 June 2022, its apologies, and its offer to meet the residents to resolve any outstanding dissatisfactions represented reasonable redress for the identified failings, and in the Ombudsman’s opinion, the landlord has been able to evidence it made reasonable and proactive efforts to resolve the complaints and “put things right” in accordance with the Ombudsman’s Dispute Resolution Principles.
The Ombudsman’s remedies guidance, available to view online, provides for awards of £100 to £600 compensation where a failure occurred that had an adverse effect on a resident, but which did not have a permanent effect on them. There was no evidence that the identified failures, which were largely historic, led to the residents being permanently disadvantaged, or an evidenced quantifiable loss. Therefore, the landlord’s revised final offer of £200 compensation, which was slightly higher than the Ombudsman would expect to see in similar circumstances, recognised the distress experienced by the residents and constituted reasonable redress in the circumstances.

Determination

In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord made an offer of redress to the residents which, in the Ombudsman’s opinion, resolves the complaints satisfactorily concerning the tone, content and language used in correspondence the residents received from the landlord.

Recommendations

The landlord should:
1. Pay the residents the £200 compensation offered on 15 June 2022.
2. Contact the residents to clarify whether they can access the solar panel scheme.
3. Carry out training with its staff to ensure that the language used in its communications, whether internal or otherwise, is appropriate, professional and sensitive to residents’ circumstances.
4. Review its record keeping and data retrieval procedures to ensure that information held against a tenancy is accurate and correct information is provided when requested.