Leeds City Council (202008675)

REPORT

COMPLAINT 202008675

Leeds City Council

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

The complaint is about the landlord’s:
1. Assessment of the resident’s priority for rehousing.
2. Response to the resident’s reports of anti-social behaviour (ASB).
3. Response to the resident’s reports about a leak, damp and mould at the property.

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 (m) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: the complaint about the landlord’s assessment of the resident’s priority for rehousing.
Under the terms of the Memorandum of Understanding between the Local Government and Social Care Ombudsman and the Housing Ombudsman complaints about applications for re-housing that meet the reasonable preference criteria, including complaints about the award of points or banding are matters for the Local Government and Social Care Ombudsman.
Paragraph 39(m) of the Housing Ombudsman Scheme says, “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.”
Therefore, this aspect of the resident’s complaint is outside of the Ombudsman’s jurisdiction.
The remaining two complaints about the landlord’s: response to the resident’s reports of ASB, and handling of the repairs are assessed below.

Background and summary of events

The resident is a secure tenant of the landlord, a local authority. During the relevant period the resident lived in the property which is a one bedroom eighth storey flat in a building owned and managed by the landlord.
The landlord’s ASB policy says that where enquiries are deemed appropriate for investigation a case will be created and the case officer will offer/arrange to visit the reporting person or victim, identify and contact any additional witnesses and visit the accused to discuss the allegations made with within 10 working days of the case creation date. The Case Officer will contact the reporting person or victim at least every 10 working days to obtain any further evidence and update them regarding the case investigation. Case Officers will consult with the reporting person prior to closing cases.
The landlord’s tenancy fraud procedure says that it has a duty to investigate allegations of subletting.
On 30 November 2019 the resident’s solicitors sent a letter to the landlord saying that they were advising the resident under the Housing Disrepair Protocol. The letter said that the property was suffering from various disrepairs, attached a schedule of the disrepair, asked the landlord to agree to jointly instruct an expert to inspect the property and to provide its proposals for compensation. The schedule of repairs included damp and mould in the kitchen and bathroom at the property. The expert surveyor carried out an inspection of the property in December 2019.
On 17 January 2020 the landlord visited the resident who explained that there were issues at the property with damage from leaks. The landlord noted that these had been historical leaks that had been rectified and it could not see any damage form the leaks and the property was in good condition decoratively. The landlord’s notes say that it informed the resident that it would not be discussing the historic repair issues as they were being dealt with by its legal department under the pre action protocol procedure. The resident showed the landlord signs of mould on the kitchen wall and advised that his wife had to wash the wall every day. The landlord maintains that prior to the visit it had contacted its Disrepair Team to provide an update. The team asked if access to the property could be arranged to enable them to carry out window and door repairs that needed to be done before the disrepair works could take place.
The landlord says that “[the resident] said he wanted no dealings in regards this and wanted all contact to be via his solicitor. This was fed back to [the Disrepair Team], the claim is now on hold as they are waiting for an expert report from the tenant’s solicitors that they need to respond to.” The resident also said that he had experienced noise nuisance from his neighbour and played the landlord a recording. The landlord’s notes say that the recording showed that the noise had been turned down at the resident’s request and the matter resolved amicably. The landlord said that as it had been resolved amicably action would not be taken. The resident informed the landlord that his neighbour was subletting his flat and he showed the landlord a video of several people leaving the flat. The landlord told the resident that it would look into this but advised that the video wasn’t evidence of subletting. The landlord said it would telephone the resident the following week.
On 21 January 2020 the office of the resident’s MP sent an email to the landlord saying that the resident had approached it regarding a leak in his flat and noise complaints. The landlord replied on 30 January 2020 and set out details of its visit to the resident on 17 January 2020.
On 24 January 2020 the landlord telephoned the resident and informed him that it had reported the issue concerning the neighbour subletting his flat to the tenancy fraud team. The landlord also said that it would also speak to the tenancy fraud team about the resident’s video and information but advised the resident that this issue had previously been investigated and no fraud found.
On 17 March 2020 the landlord spoke to the resident by telephone and informed him that it was still looking into his allegations about the neighbour subletting his property.
On 18 March 2020 the landlord sent an email to the resident’s solicitors asking for confirmation that they were still instructed by the resident and for a response to outstanding issues. The resident’s solicitors replied the same day saying they were still instructed were awaiting their expert report following the inspection of the property.
On 19 March 2020 the resident telephoned the landlord to report that his neighbours were swearing and fighting. The landlord advised him to call the police on 101 if it was a public order incident.
On 30 March 2020 the resident reported ASB by his neighbours to the landlord. The resident again said that his neighbour was subletting his flat and there were a number of other people living there. He said that the people staying at the neighbouring flat had been abusive and threatening to him and his wife.
On 1 April 2020 the resident spoke to the landlord and the landlord’s notes about the ASB reports say “Its [sic] noise, its [sic] threats its [sic] subletting and some apparent immigration issues – with allegations that the perp is bringing females into the country.”
The landlord’s case notes say that on 2 April 2020 the resident showed the landlord videos on his phone of people coming and going from the neighbour’s flat. The landlord’s notes also say it had “done a letter drop re: noise nuisance/ASB and not heard from any other tenant in the block to say they are affected.”
On 16 April 2020 the landlord telephoned the resident who informed the landlord that he felt as though he were living in a prison cell and his mental health was suffering. The landlord offered to refer him for mental health support. The resident declined this offer.
Following a further report of excessive noise from the resident the landlord wrote to him on 27 April 2020 saying that it was sorry that he was continuing to experience problems. The landlord said the neighbour and others at the property had been given a COVID 19 breach warning and dispersed from the property. The landlord also said that the relevant agencies were investigating the resident’s allegations regarding subletting, fraud and the safety of women who had been linked to the address. The landlord said that it would also be contacting the neighbour to warn him about the excessive noise.
The resident spoke to the landlord on 26 May 2020 to inform it that he was still experiencing problems with the neighbour. On 26 May 2020 the landlord wrote to the resident saying that it had passed on the information he had provided to the relevant agencies (including immigration services and tenancy fraud) for further investigation. In relation to noise from the property it had checked its out of hours (“OOH”) service and there were no recent calls in relation to the neighbours. The landlord said that it would continue to investigate reported problems and where new evidence was obtained through the use of surveillance, monitoring/recording equipment and witness interviews etc it would take further action as appropriate. If no evidence was obtained and no further reports of ASB were received the case would be closed and no action taken.
On 1 June 2020 the landlord tried to speak to the resident by telephone but there was no answer. The landlord’s notes say “[the resident] will not call the OOH re the noise so we cannot progress the case. I have checked on caseworks and ACR and I can only find 2 references to noise complaints in 2017 and nothing since?”. Later that same day the landlord spoke to the resident who said that he was still having problems with noise from the neighbours. The landlord’s notes of the conversation say “[the resident] has said this has been happening for 6-7 years – I cannot find the logs for this. He said he no longer calls OOH service as they have not helped him…I will speak with housing officer.”
The landlord’s notes on 16 June 2020 say “called [the resident] but no reply I will write to him as I think at this stage there is nothing further we can do. I have reported the worries he had about subletting and illegal immigrants to the appropriate agencies. [The resident] will not call the OOH re the noise so we cannot progress the case.”
On 26 June 2020 the landlord wrote to the resident saying it was closing the ASB case because the issues the resident had reported had been passed to more appropriate agencies and there have been no further complaints regarding noise from the neighbour.
On 29 July 2020 the landlord telephoned the resident and informed him that it had had to pass the case to another tenancy fraud officer as the previous officer had been off work long term.
On 10 August 2020 the landlord spoke with the resident and explained what actions the landlord had taken in response to his reports about the neighbour and said it would confirm this in writing.
The landlord maintains that in August 2020 the landlord’s tenancy fraud officer, who had investigated the allegations of subletting, sent the resident a letter. In the letter the officer said that the evidence held, and information received, indicated that only the tenant and his wife were now living at the property and therefore the case would be closed. The officer also said that if in future the resident thought that the neighbour had left the property for a long period of time and other people appeared, to report this and the case could be reopened.
On 24 September 2020 the landlord wrote to the resident’s solicitors making a without prejudice save as to costs offer of £1500 damages, reasonable legal costs and a proposal to complete the works set out in an attached Schedule of Works and Scott Schedule. The Scott Schedule included works to remedy damp and mould in the kitchen and bathroom that had been identified by the expert surveyor. The resident’s solicitors wrote to the landlord on 29 September 2020 accepting the offer on behalf of the resident.
On 14 October 2020 the landlord sent the resident a letter detailing the following actions it had taken in response to his reports of ASB:
1. It had referred the report of subletting to its tenancy fraud team.
2. There was some delay as the initial tenancy fraud officer was off for a period of time due to unforeseeable circumstances. The case was then referred to another tenancy fraud officer who reviewed the evidence.
3. The tenancy fraud officer had contacted the resident in August 2020 to advise that the evidence indicated that only the tenant and his wife now lived at the property and the case would be closed. The officer also told the resident to report any future suspicions.
4. The landlord had opened an ASB case and investigated the reports. The case was closed in June 2020 and the landlord had informed the resident of this by letter.
5. In its letter in June 2020 closing the ASB case the landlord had informed the resident that it had passed the issues the resident had reported to more appropriate agencies and that there had been no further complaints regarding noise from the neighbours.
6. Whilst some visits had been made by the landlord to the neighbour’s property any reports received after March 2020 could not be followed up by a visit due to the Covid 19 lockdown restrictions. The landlord said that this had an impact on the time taken to carry out the investigations.
On 11 November 2020 the resident contacted this Service saying that he had made a complaint to the landlord about its response to his reports of a leak at the property and his neighbour’s ASB. On 13 November 2020, following contact from this Service, the landlord informed this Service that, whilst it hadn’t received a complaint from the resident about its response to his reports of a leak at the property and of noise nuisance from a neighbour, it noted that he had been in contact with both his MP and councilor about these issues. Therefore, the landlord had retrospectively registered that contact as stage 1 of the complaints process and had informed the resident that it had acknowledged his complaint and registered it at stage 2 of its complaints policy.
On 13 November 2020 the landlord spoke to the resident about his complaint. The landlord’s note of the meeting says that the resident wanted to be rehoused. He said that he had given the landlord proof about the neighbour subletting his flat and referred to a leak that had happened some years ago and had been the subject of a formal complaint to the landlord which had exhausted the landlord’s complaints process in 2018. The resident also explained that there had been damp and mould issues at the property. He had accepted the £1500 damages offer but said he hadn’t done it for the money and “was not happy as he was unable to take [the landlord’s local housing office] to court and couldn’t afford to do this in relation to the health issues and stress caused and mental disturbance.” The resident also said that he was waiting for the repairs to be done as a result of the disrepair claim and required an update on the situation. The resident said he wanted an apology and explanation from the landlord as to why it hadn’t dealt with the ASB issues and taken the neighbour to court over his subletting. He also wanted to be rehoused.
On 1 December 2020 the landlord sent the resident its stage two complaint response. In its response the landlord said that it was waiting for comments from colleagues regarding the repairs and in particular the status of his disrepair claim. The landlord said that it had asked that the relevant team contact the resident directly regarding this aspect of the complaint and apologised that it was unable to provide him with a full response. The landlord then set out the following actions it had taken in response to the resident’s reports of ASB:
1. Its tenancy fraud officers had investigated his reports that his neighbour had been subletting his flat.
2. It had informed UK Border Force of the possible issues with immigration.
3. It had liaised with the Police.
4. It had contacted the resident in August 2020 to advice that the tenancy fraud investigation would be closed as it had established that the neighbour and his wife were the sole occupants of the property.
5. It had told the resident that it would be possible to reopen the tenancy fraud investigations into the neighbour if there were further concerns or if new information came to light.
6. It had carried out a letter drop to the other residents in the block concerning any ASB with no other residents coming forward to complain.
7. It had advised the resident to use the OOH service when noise was occurring, although he refused to do so.
8. It had issued a Covid 19 breach warning letter to the neighbour.
9. It had informed the resident in June 2020 that having investigated the reported ASB it would be closing the case.
10. It had closed the tenancy fraud case in August 2020 when it had established the tenant and his wife were now living at the property.
On 6 December 2020 the resident moved from the property to another property owned and managed by the landlord.
The landlord’s letter dated 1 December 2020 was its final response to the resident’s complaint, confirming that it had exhausted its internal complaints process.

Assessment and findings

The complaint about the landlord’s response to the resident’s reports of ASB.

It is evident that this situation has been distressing to the resident. It may help to firstly explain that the Ombudsman’s role is not to decide if the actions of the neighbour amounted to ASB, or whether the neighbour was subletting his property, but rather, whether the landlord dealt with the resident’s reports about these issues appropriately and reasonably.
In response to the resident’s reports of ASB, including the neighbour subletting his property, the landlord:
1. Referred the subletting allegations to its tenancy fraud team.
2. Within five working days of the resident making the subletting allegations telephoned the resident to inform him that the case had been referred for investigation by the tenancy fraud team.
3. Referred the resident’s concerns about the neighbour to the immigration services.
4. Spoke to the resident on 1 and 2 April 2020 to discuss the resident’s ASB reports made on 19 and 30 March 2020.
5. Carried out a letter drop to the other residents in the block concerning any ASB, with no other residents coming forward to complain.
6. Liaised with the police.
7. Offered to refer the resident for mental health support.
8. Issued a COVID 19 breach warning to the neighbour and others at the neighbour’s property and dispersed them from the property.
9. Checked its OOH service for recent calls in relation to the noise disturbance by the neighbours.
The landlord’s actions set out in the previous paragraph were an appropriate response to the resident’s allegations of ASB, demonstrating that the landlord had taken steps to investigate and consider how to resolve the ASB reports in accordance with its policy and procedure. Ultimately though there was a lack of conclusive evidence of the ASB, including the alleged subletting, to support the landlord taking further, more formal action and so it was reasonable that the landlord did not do so.
Therefore, there is no evidence of service failure by the landlord in relation to this complaint.

The complaint about the landlord’s response to the resident’s reports of a leak, damp and mould at the property

In its meeting with the resident on 13 November 2020 to discuss his complaint the landlord made the following notes about issues with repairs:
1. The resident referred to a leak that had happened some years ago and had been the subject of a formal complaint to the landlord which had exhausted the landlord’s complaints process in 2018.
2. The resident had accepted £1500 damages offer for various disrepairs, including damp and mould, and was waiting for the repairs to be done and required an update on the situation.
In its final response to the resident’s complaint it was reasonable for the landlord not to consider the resident’s concerns about the landlord’s response to his reports of a leak at the property as:
1. This matter had previously been considered by the landlord as a formal complaint and had exhausted the landlord’s internal complaints procedure in 2018.
2. The Ombudsman’s Complaint Handling Code sets out the following as valid reasons for a landlord not to accept a complaint: the issue giving rise to the complaint occurred over six months ago and/or the complaint concerns matters that have already been considered under the landlord’s complaint’s policy.
In response to the resident informing it about the damp and mould at the property via his disrepair claim in November 2019 the landlord:
1. Passed the matter to its legal team who made an offer to settle under part 36 of the Civil Procedure Rules.
2. Chased the resident’s solicitor for the expert surveyor’s report.
3. Asked the resident for access to the property to carry out works that needed to be addressed before the disrepair works could be done.
4. Agreed to carry out works to remedy the damp and mould in the kitchen and bathroom.
5. Offered to pay the resident £1500 damages and reasonable legal costs.
The landlord acted reasonably in following a fair legal process and in trying to resolve the resident’s disrepair claim.
The landlord also acted reasonably and demonstrated a resolution focused approach in chasing the resident’s solicitor to provide the expert surveyor’s report and in asking the resident for access to the property to carry out works that needed to be addressed before the disrepair works could be done.
It is noted that the landlord made no admission of liability in offering to carry out the work and pay damages. There is also no evidence of specific delays or service failures in the landlord responding to reports of damp and mould by the resident.
It is noted that the offer of £1500 was for specific and general damages in accordance with the Housing Disrepair Protocol and was for damages for all the accepted disrepair issues mentioned in the resident’s disrepair claim. The Scott schedule listed 22 items and it is therefore unclear what amount of the damages related specifically to the damp and mould. However, it is noted that in the defendant’s costs set out in the Scott schedule 72% relate to the costs of carrying out the remedial work for the damp and mould at the property. It would not be unreasonable to therefore assume that 72% of the £1500 (£1080) related to damages in respect of the damp and mould.
If the resident wishes to challenge the amount of the landlord’s damages offer, then this would be by way of a legal process and the resident should seek independent legal advice. The Ombudsman does not assess compensation as a court would assess damages. All orders of compensation are calculated on what is considered fair in the circumstances of the individual case. There is no evidence that the sum of £1080 was not a reasonable offer.
Whilst the landlord agreed to remedy the damp and mould at the property this work had still not been done by the date of the final response to the resident’s complaint on 1 December 2020. Neither had the landlord provided the resident with an update as to when the works would be carried out, despite this specifically being requested by the resident in his meeting with the landlord on 13 November 2020 to discuss his complaint. This was not a reasonable response by the landlord and, although the impact on the resident was mitigated by his moving to a new property on 6 December 2020, the Ombudsman will however be making an order for compensation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports of ASB.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in its response to the resident’s reports of a leak, damp and mould at the property.

Reasons

The range of actions taken by the landlord in response to the resident’s ASB reports were appropriate and in accordance with its obligations and policies. It has evidenced that it took proportionate steps to investigate and address ASB.
The steps taken by the landlord in response to the resident’s disrepair claim were largely appropriate and resolution focused, however the landlord did not carry out the agreed remedial works for the damp and mould in a timely manner, nor did it provide the resident with an update about the repairs by the time it issued the final response to his complaint.

Orders

The landlord is ordered within four weeks of the date of the determination to pay the resident £100 for the distress and inconvenience incurred as a result of its failure to carry out the agreed remedial works in a timely manner and to update the resident concerning the repairs.