‘Johnnie’ Johnson H A Ltd (201906066)

REPORT

COMPLAINT 201906066

‘Johnnie’ Johnson H A Ltd

9 June 2022

Our approach

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

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

The complaint

The complaint is about the landlord’s response to the resident’s reports of antisocial behaviour (ASB).
The Ombudsman has also investigated the landlord’s:
1. record keeping.
2. complaint handling.

Background and summary of events

The resident was a tenant of the landlord’s property, a three-bedroom house, from September 2002 to July 2019. The resident has referred her complaint to this Service via her son (Mr H). Mr H also represented the resident throughout her complaint with the landlord.
In correspondence to the Ombudsman, Mr H has advised that both he and the resident had been subjected to verbal abuse, threats and intimidation from their neighbour (Ms J) and her family (the alleged perpetrators). The resident and Mr H were unhappy with what they considered to be a lack of action on behalf of the landlord, and raised their concerns as a formal complaint in 2018.
A copy of the resident’s complaint has not been provided to this Service. However, the landlord issued a response on 10 December 2018. It said:
1. It had reviewed recent actions taken in respect of the allegations that had been made against Ms J. Having done so, it was satisfied that procedures had been followed correctly, and that “appropriate actions” had been taken in response to the evidence that was available at the time.
2. It had reviewed the correspondence that had been sent by the resident’s Housing Officer in September 2018. At the time of this complaint, there was insufficient evidence to support the resident’s complaint that Ms J and the alleged perpetrators had caused ASB or nuisance. It appeared that the incident reported was a domestic/family dispute that did not meet the definition for ASB as set out in its policies and procedures.
3. Mr H had made a further allegation about rubbish being thrown into the garden at the end of September 2018, and advised that this had been captured by CCTV. It had been agreed that the footage would be provided after the resident had reviewed it; however, it seemed that “the evidence was not available”.
4. While it took reports of ASB seriously, without any evidence to substantiate allegations, tenancy enforcement actions were limited.
5. It was clear that the relationship with the neighbours had broken down; however, in view of the evidence that was available at the time, it was unable to pursue tenancy enforcement against Ms J and her family.
6. It wished to suggest mediation as a means of resolving the ongoing dispute. A referral could be made to the mediation service who would explain how the process would work, as it would not necessarily mean that the resident would have to meet face to face with her neighbours.
Available evidence does not confirm what transpired after this. However, an incident took place in April 2019, which was reported to the police. The resident surrendered her tenancy in July 2019, and in August 2019 Mr H asked to escalate the complaint after seeking guidance from this Service.
The landlord issued its stage two response to the complaint on 28 August 2019. It said:
1. It understood that the resident and Mr H were dissatisfied with the stage one complaint response.
2. Following a review of the case, and after discussions with the police, it was satisfied that the incidents of ASB had been dealt with in line with “the law, regulation and our own policies”.
3. The resident and Ms J were offered mediation. Ms J accepted this; however, the resident declined. The resident was also offered an alternative property; however, this was declined as it was deemed to be too close to the then current address.
4. Staff had met with the resident at the property to complete a “pre-quit inspection” in July 2019. During this, the resident had discussed the previous incidents with her neighbour and had advised that her reason for leaving the property was because of her neighbours.
5. The incident in April was a criminal act. The police had investigated and confirmed that the case was with the Crown Prosecution Service, and would be going to court. As this was a legal matter, it fell outside of its complaints policy.
The landlord concluded by informing the resident of her right to refer the complaint to the Ombudsman if she was unhappy with the outcome.Mr H subsequently contacted this Service in October 2019 as both he and the resident remained unhappy with the landlord’s response to their concerns.
From the information received, it was considered unclear whether the resident had exhausted the landlord’s complaint procedure and the case was not progressed by this Service. In April 2021, following further contact from Mr H, it was established that the stage two response had been issued in August 2019, and that this had been enclosed within the information that was initially provided in October 2019.
This Service contacted the landlord in May 2021 to request key information relating to the case so that the resident’s concerns could be investigated. Towards the end of May 2021, the landlord queried why the Ombudsman had accepted the case for investigation given the time that had lapsed. An explanation was provided regarding this Service’s administrative oversight, and it was confirmed that the Ombudsman would be proceeding with a formal investigation upon provision of the requested evidence.
The landlord responded to this Service’s information request on 29 July 2021. It advised that as information had been requested “three years after the initial stage one complaint”, it was unable to provide historical information that had been held on the ASB/Complaints system. It advised that information was disposed of after a period of two years, in line with the General Data Protection Regulation (GDPR) guidance. It was therefore unable to provide any evidence that had been contained within the ASB case file.

The landlord’s policies and procedures

The landlord’s ASB policy provides that in response to reports of ASB it will “provide an accessible service and relevant information to residents”. It says that it will deal sensitively, objectively, and impartially with any report of ASB and ensure that staff are trained to deal effectively with ASB too. To tackle ASB, the policy states that the landlord will take appropriate action against perpetrators of ASB whether they are residents, people residing with them or their visitors. The landlord states that it will work with residents and encourage mediation as a means of dispute resolution where appropriate.
With regards to reporting, investigating, and resolving ASB, the policy states:
1. All reports of ASB will be fully investigated and the complainant will be included in agreeing what actions are to be taken.
2. It will investigate all reports of ASB and use a range of methods to resolve it, including:
  1. Making use of restorative justice where appropriate.
  2. Where additional needs are identified from the complainant or perpetrator, it will work to support the additional needs.
  3. Verbal and written warnings, and Acceptable Behaviour Contracts
  4. Formal tenancy actions
In the event that perpetrators of ASB do not change behaviours following intervention, or where the ASB is of a serious nature, the landlord will use legal action against them. The interventions available include civil injunctions, demotion orders and possession proceedings.
The policy also includes a definition of “criminal activity”. This is where the police have arrested and charged a tenant, occupant or visitor with a crime that has been conducted within the vicinity of one of its properties and this has resulted in a conviction in the criminal courts.
The landlord’s data retention guide sets out:

Document	Recommended Retention Period	Comments
Complaints and Harassment Cases	2 Years after resolution	Housing Ombudsman Recommendation
ASB Complaints/Harassment Cases	2 Years after resolution/end of tenancy	Housing Ombudsman recommendation

The landlord’s complaints policy states that if a complainant is dissatisfied with the landlord’s response at stage one, the matter will be escalated to a senior manager, who has not been previously involved. The manager will review the reasons for wishing to escalate the complaint and make a decision accordingly. If a decision is taken to escalate the complaint to stage 2, a panel will be held and comprise a Board Member, Director/Senior Manager and Complaints Advocate as a resident representative.
The complaint policy states that the landlord will not deal with “issues that are in court or have already been heard by a court or tribunal, or where legal action has been taken”.

Assessment and findings

When the landlord responded to this Service’s information request in July 2021, it said that the request was received three years after the stage one complaint response had been issued in December 2018, and on that basis, the evidence was not available. The wording within the landlord’s data retention guide does not stipulate whether “resolution” relates to the resolution of a complaint, or the ASB itself. However, Mr H had requested the escalation of the complaint in August 2019. This was approximately eight months after the stage one complaint response was issued. Once the landlord received the resident’s escalation request, it would not have been appropriate for it to have regarded the matter as having been resolved in 2018.
The landlord’s final response to the complaint was issued on 28 August 2019. The resident’s tenancy ended one month prior to that on 7 July 2019. This Service wrote to the landlord to request key information relating to the case on 21 May 2021, which was within two years of the final complaint response and tenancy end date. The request was acknowledged by the landlord in May 2021, at which time it said that some of the files had been “redacted” and staff who had managed the initial ASB case had left the organisation. When the landlord replied to the information request on 29 July 2021, it advised that the relevant files had been destroyed.
While it is acknowledged that an organisation should not keep personal and sensitive data for a period longer than necessary, the landlord has not adhered to its retention guide in this case. As this Service’s request for information was made within two years of both the stage two response to the complaint and the resident leaving the property, the information relating to the ASB complaint should have still been available. That the landlord had destroyed the records within the two-year period was a departure from its data retention guide and is evidence of poor record keeping. This is a significant failing in the circumstances.
While the landlord has recently advised that information was destroyed in line with GDPR, its guide sets out that the prescribed timescale is in line with “Housing Ombudsman Recommendation”. The landlord has not been able to provide a copy of any recommendation and has advised that it may have been taken from a past Ombudsman decision.
The landlord’s guide does not reflect relevant and appropriate best practice because this Service does not recommend how long a landlord should keep information for; this is the landlord’s responsibility to decide in line with appropriate regulations – and it is clear through the landlord’s recent contact with this Service that it is aware of applicable regulations. Further, the landlord should consider whether there is a need to retain ASB and complaint records for purposes beyond the Ombudsman’s investigations.
It is also noted that the landlord initially advised this Service in May 2021, in response to a request for evidence, that some of the files had been “redacted” and staff who had managed the initial ASB case had left the organisation. Having robust record keeping systems ensures that a landlord can easily access and retrieve information. That the landlord considered that it could not address the Ombudsman’s request for information because staff had left again indicates poor record keeping and/or management.
Clear record keeping and management is essential where reports of ASB are made, and investigations into allegations are undertaken. This is because such records form evidence which the landlord may review and rely on in its management of the ASB case. Accurate and complete records also help a landlord review its handling of the ASB case through its complaint procedure, and to provide evidence during other processes including Ombudsman investigations and legal proceedings. The absence of appropriate records, and therefore evidence, presents a significant risk that such processes cannot be fully utilised, and residents are disadvantaged.
In this case, there are significant gaps in evidence which has not enabled this Service to obtain a full understanding of the history and handling of this ASB case.
In the absence of records from the landlord, Mr H was asked by this Service to provide any available, further evidence. The resident and Mr H have provided some contemporaneous evidence relating to their reports of ASB, and communication that was exchanged in relation to the ASB in 2018. Mr H has also raised concerns with this Service that over the years they had provided the landlord with evidence in the form of incident logs, and these had “gone missing” at the time. Mr H added that he and the resident felt let down by the landlord and that it could have intervened sooner to prevent some of the incidents that later occurred.
Within the logs that Mr H has provided, it is recorded that:
1. Both he and the resident reported frequently finding screws outside the property, which they believed to have been left there by Ms J and her family, and that these resulted in punctured tyres having to be replaced.
2. One of the alleged perpetrators is reported to have driven closely behind their car “touching the bumper”, and footage of this had been obtained on CCTV.
3. Ms J is reported as regularly shouting abuse at the resident, Mr H, and visitors to their property.
4. Some of the reports were reported to the police.
Mr H has advised that these logs had been duly provided to the landlord, but that it did not investigate their reports. While the landlord’s comments in the complaint responsesthat it acted appropriately have been noted, it has not been able to demonstrate that it investigated these reports in accordance with its ASB policy, or that it took appropriate action at the time.
Mr H has also provided a copy of a letter from Derbyshire Victim Services (DVS) to the landlord dated 12 September 2018. Within its letter, DVS advised that it had received a referral from the police – the incident number was provided – as the resident and Mr H had been the victims of an arson attack. The officer continued by explaining that the resident and Mr H had been particularly alarmed and distressed by the incident and that the resident’s health condition had been exacerbated by harassment they had received. The officer requested that the landlord give their application for re-housing priority in the circumstances.
The landlord wrote to the resident soon after on 21 September 2018. However, the correspondence makes no reference to the letter from DVS, or the arson incident. Rather the letter advised that while the resident had made reports about her neighbour, there was “no evidence” to support that ASB had taken place. In addition, the landlord advised that the resident may wish to reconsider mediation in the circumstances.
Given the lack of evidence, it is not possible to know whether the arson incident referred to in the letter from DVS was investigated further by the landlord. In line with the landlord’s ASB policy, it would have been appropriate for the landlord to have “fully investigated” and involved the resident in agreeing further actions. Given the serious nature of the allegation, it would have been reasonable for the incident – and the actions that the landlord had taken in response to the incident – to be referenced in the landlord’s letter of September which concerned ongoing reports of ASB. That they were not was a failing in the landlord’s handling of the matter.
The landlord wrote to the resident again on 10 December 2018. The letter is not labelled as a stage one or formal complaint response. However, the landlord has informed this Service that this correspondence was its stage one response to the complaint. In this, the landlord discussed two incidents in September 2018; one which it classified as a “domestic/family dispute”, and the other an allegation of rubbish being thrown into the resident’s garden. Beyond this, it spoke generally of the ASB case; that it had reviewed “recent actions taken in respect of the allegations” and was satisfied that “appropriate actions” had been taken, and its general approach to dealing with ASB complaints. It concluded that its handling of the resident’s reports had been appropriate overall.
The landlord’s response was inappropriate because it did notset out the periodit had considered, what evidence had been considered, and what action it had taken – if any – with reference to its ASB policy. The landlord’s investigation into the resident’s complaint therefore appeared cursory.
In addition, it would have been appropriate for the landlord to have clearly marked the correspondence as a stage one complaint response, and provided information about what the resident could do if she remained dissatisfied and wished to escalate her complaint, including a timescale for escalation. While the landlord’s complaint policy in place at the time of this complaint did not set out that the landlord was required to do this, not doing so meant that the landlord’s handling of the complaint was unclear, and the resident was not made aware of their right to escalate the complaint. This was a significant failing.
It is noted that the landlord’s current complaint policy does not set out that the landlord will provide guidance to a resident on how to escalate their complaint. The Ombudsman’s Complaint Handling Code requires a landlord to confirm in writing to the resident the stage at which the complaint is being considered, and how to escalate the complaint following completion of each stage. An order has been made to the landlord relevant to the failings in its handling of this complaint, and this issue.
The resident’s request to escalate the complaint was made several months after the landlord’s initial complaint response, and only following contact with this Service when guidance was provided on escalating the complaint. The landlord subsequently investigated the resident’s concerns at stage two of its complaints process and provided its response on 28 August 2019. The landlord’s complaint policy in place at the time of the complaint states that where a complaint is escalated to stage two of the process, a panel will be held. Available evidence does not explain why the landlord departed from its complaints policy by not convening a panel. This was not offered at the end of the Stage 1 complaint response, and there is no supporting evidence to provide any rationale for the landlord’s decision. In the absence of an explanation from the landlord, the unexplained departure from the complaints policy was unreasonable.
Within the written response, the landlord advised that it was satisfied that the incidents of ASB had been dealt with in line with the law, regulation, and its own policies. Again, the landlord failed to advise which reports it had considered and why it was deemed that appropriate action had been taken. In the circumstances, it would have been appropriate to provide the resident with a thorough explanation for its findings, including why it considered that there had not been any failings in its handling of the case.
The landlordalso referred to mediation that had been offered but declined by the resident, and an alternative property which had been offered. The resident and Mr H have advised this Service that mediation was declined as a criminal investigation was underway at the time. It is not clear if the resident’s reasons were explained to the landlord at the time. If the landlord had been made aware of the resident’s reasons for her refusals, it would have been reasonable for the landlord to address this – and why notwithstanding this it considered that it had acted appropriately – within the final response.
However, the landlord was aware at the time of addressing the escalated complaint in August 2019 that there had been police involvement and that an incident considered to be a criminal matter took place in April 2019. The relevance of mediation having been offered, and that the resident had declined this, was therefore unclear in the circumstances.
With regards to the offer of an alternative property, the landlord was aware that the resident considered it to be too close to Ms J’s property. However, it is not clear if the landlord was aware that it was next door to one of Ms J’s friends. Nevertheless, it would have been reasonable for the landlord to address the resident’s concerns about the location of the offered property – and to explain why no further properties were offered – either in line with its relevant policy or the circumstances of the case. That the landlord did not provide such an explanation was a failing in its handling of the matter, and its response did not demonstrate an empathetic approach to the situation.
Towards the end of the complaint response, the landlord referred to an incident that took place in April 2019, considered to be a criminal matter and progressing to court, and which therefore fell outside of the complaint policy. The ASB policy states that the landlord will liaise with organisations such as the police when investigating ASB. While it is likely that the landlord had some level of contact with the police as it was aware of how the case had progressed, there is no available evidence to confirm that the landlord otherwise investigated this matter as it should have done, or sufficiently updated the resident outside of the complaint procedure.
While the landlord’s complaint policy at the time of the matters complained of set out that complaints would not be considered where legal action had been taken, the landlord does not appear to have appropriately exercised its discretion and considered the individual circumstances of this complaint. In complaints involving legal action between a landlord and resident, it is acknowledged that consideration of the matter through the complaint procedure may affect a legal outcome or may duplicate an alternative, more appropriate process.
In this case, the legal action involved the resident’s neighbour, and it is not clear how the landlord’s review of its own actions in responding to the resident’s concerns about the reported ASB would have affected any legal process. It would have been appropriate for the landlord to have acknowledged the seriousness of the case, to have demonstrated a victim-centred approach, and to have explained what it could do following the outcome of the CPS investigation. As it was, the landlord’s response was dismissive of the incident and the resident’s situation, failing to acknowledge any effect on the resident and that she had felt compelled to leave her home of 17 years.
The investigation of the resident’s complaint has found significant failings in the landlord’s handling of the ASB reports, records relating to the ASB and associated complaint, and the landlord’s complaint handling. The cumulative impact of these failings has caused the resident significant adverse effect. The landlord should now acknowledge these failings, and take steps to put things right.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was:
1. Severe maladministration in the landlord’s response to the resident’s reports of ASB.
2. Severe maladministration in the landlord’s record keeping.
3. Severe maladministration in the landlord’s complaint handling.

Reasons

The landlord failed to keep appropriate records relating to the resident’s reports of ASB; and its actions in destroying the ASB file were not in line with its data retention guide. The guide itself does not appear to have been developed in line with appropriate good practice, as it incorrectly links its prescribed timescales to Ombudsman guidance.
While the contemporaneous evidence which was contained within the ASB file has been destroyed, the landlord has failed to demonstrate through the evidence that is available that it dealt with the resident’s reports of ASB appropriately and in line with its policy.
There were further, significant failings in the landlord’s complaint handling. The complaint was initially addressed through a letter which the landlord only later clarified was a stage one response, and the response failed to provide information about escalating the complaint. The stage two response was limited in detail and explanation, and the landlord did not sufficiently address the complaint or acknowledge the resident’s circumstances. The landlord failed to appropriately exercise its discretion in deciding not to address the resident’s complaint about the handling of an incident in April 2019 as prosecution was underway. This rigid application of its policy lead to the resident’s complaint remaining unaddressed.
The significant failings in the landlord’s handling of ASB reports, complaint handling, and record keeping were cumulative, and have caused significant adverse effect to the resident.

Orders

Within four weeks of the date of this determination, the landlord should:
1. Apologise to the resident for the failings identified by this investigation.
2. Pay the resident a total of £1800 comprised of:
  1. £1000 for distress and inconvenience caused by its handling of the ASB reports.
  2. £500 for the distress and inconvenience caused by the record keeping failures identified by this investigation.
  3. £300 for the distress and inconvenience caused by the complaint handling failures identified by this investigation.
Within eight weeks of this determination, the landlord should:
1. Review its complaint policy and any associated staff guidance to mitigate the risk of the failings identified in this case from happening again and to demonstrate learning from the outcome of this complaint. This review should be completed with reference to the Ombudsman’s Complaint Handling Code and must include:
  1. Ensuring that confirmation of the complaint stage is provided in every complaint response.
  2. Ensuring that clear instructions on how to escalate a complaint at the end of every complaint response are provided.
  3. Making staff aware of the need to consider the individual circumstances of each complaint, and appropriate use of discretion.
2. The outcome of the landlord’s review, including changes made to the complaint policy and/or staff guidance, must be shared with the Ombudsman.
The landlord should:
1. Within ten weeks of the date of this determination, review its data retention guidance on (i) ASB and harassment case records, and (ii) complaint case records, considering the failings identified in this case. This review should include removal of the reference to “Housing Ombudsman Recommendation”.
2. Within four weeks of any new version of the guidance being finalised, the landlord should deliver training to staff in the guidance.
3. The outcome of the landlord’s review, and dates of staff training, must be provided to the Ombudsman.