London Borough of Barnet (202122014)

REPORT

COMPLAINT 202122014

Barnet Homes

29 June 2023

Our approach

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

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

The complaint

1. The complaint is about the resident’s inclusion on the landlord’s verbally abusive resident (VAR) list.

Background

2. The resident lives in a two-bedroom property with her disabled son. The landlord placed her on a verbally abusive resident list in 2015. The resident discovered this by chance and on 1 October 2021 complained to her landlord.
3. The resident accepted she had complained about the behaviour of some staff in the past but indicated she had never been abusive. She asked for evidence to justify her inclusion on the list. The resident also alleged that being on the list was the reason some of the landlord’s staff have been disrespectful to her.
4. On 12 October 2021, the landlord issued a stage one response. It said that its records indicated the resident participated in a historic incident of verbal abuse. On that basis, it placed her name onto this list. The landlord agreed to remove her name with immediate effect because of the historic nature of the alleged incident and because there were no other reported incidents.
5. On 5 November 2021, the resident requested an escalation of her complaint. She alleged that her landlord had unfairly profiled her as an abusive person. She said this had left her open to discrimination, unconscious bias, and victimisation by her landlord.
6. On 3 December 2021, the landlord issued a final response. It apologised for how it had made the resident feel by including her on the verbally abusive resident list. The landlord also stated:
   1. That the list is a safety measure and has not prevented service delivery to the resident. It claimed that the resident did not experience any impact to the delivery of services in her home.
   2. The only additional measure was that two operatives attend the property.
   3. It accepted that there were no records of any reported incidents. The landlord agreed that it should have removed her from the list sooner. It accepted that it was not acceptable to have placed her on the list without her knowledge.
   4. The landlord stated that it recently underwent a full review of the verbally abusive resident process. It said it made significant changes to how registration happens. It had introduced regular auditing of the register and that reviews take place to always ensure accuracy. It also said the review resulted in a full data cleanse and it was confident it had reduced the risk of the situation happening again.
   5. It used an incident form to support each incident for review by its health and safety team before adding a name to the register. It would then notify the affected resident by letter. A copy of the letter would be saved on file. The list would be reviewed by the housing management team.
   6. The landlord said it had arranged regular meetings with the housing management team to review the list to ensure the resident’s situation would not re-occur.
7. The landlord offered the resident £50 compensation which it increased to £100.  The resident refused this on the basis that it did not adequately compensate for the emotional impact she experienced, including the time taken to pursue the complaint. The resident claimed that she contacted the landlord in 2015 complaining about her “VAR status” but it ignored her. She explained that this led to her disengaging with the landlord and not reporting disrepair. She further explained this had caused her distress over six years.
8. The resident was unhappy that the landlord had not provided any guidance to her on how landlords can profile residents. The resident claimed that it had taken the landlord six years to respond to this complaint and the response did not reflect the impact it had on her. For example, the resident claimed that she attended therapy for several years and that her stress has added to her already challenging life caring for her disabled son.

Assessment and findings

9. The evidence shows that the landlord wrongly included the resident on its VAR list and that it was aware in 2015 that the resident had asked about this issue. There is no evidence that the landlord responded to the resident in 2015 until she made a formal complaint in 2021.
10. Landlords have a vital role in managing relationships with residents and will sometimes have to deal with difficult or abusive residents. It is therefore important that landlords have fair, robust but sensitive policies and procedures for managing relationships. Landlords also hold vast amounts of information, including sensitive personal information about residents, which they must process in accordance with data protection laws. The Ombudsman will always expect landlords to act fairly in how it manages information and how it treats their residents, having regard to the law, the landlord’s policies, and their actions.
11. The landlord had several policies or procedures surrounding the inclusion of residents on the verbally abusive list. There are several steps that the landlord had to follow before a resident was added to this list. The landlord was required to:
    1. send a notice of unacceptable behaviour to the resident.
    2. send a first warning if the behaviour persisted, followed by a final warning letter.
    3. detail the reasons for inclusion on the VAR list.
    4. inform the resident of the consequences of being on the list.
    5. review the resident’s status after six months.
12. There is no evidence the landlord sent the resident any notices or letters or that it reviewed the resident’s inclusion on its list. It is also an aggravating feature that the resident contacted the landlord in 2015 about being on the list and there is no evidence that the landlord responded to her. The landlord should have investigated her query in 2015 and checked to see if it had followed all protocols. Had it done this then it would have soon realised that it had not entered the resident on the list appropriately.
13. It is also a concern that when the resident contacted the landlord in 2021, it failed to review her case a second time and responded by inaccurately referring to an incident that there was no evidence to support. This would have compounded the distress and upset the resident felt.
14. The resident has alleged that she experienced abuse, hostility, and unconscious bias by members of the landlord’s staff and feels her landlord did not acknowledge the impact this has had on her health and family. The Ombudsman has not seen evidence that the landlord discriminated against her or that it victimised her or failed to deliver any services on account of the resident’s inclusion on the list. The purpose of the list is to manage risk to staff, and it is likely this would affect how staff reacted and behaved with residents on the list.
15. The evidence shows the landlord repeatedly failed to apply its procedures on verbally abusive residents over a prolonged period and therefore it treated the resident unfairly. This caused the resident avoidable distress and made her feel ignored and mistreated. This will have aggravated any health issues and placed additional strain on her and her family. The prolonged nature of the failures, having regard to the resident’s particular vulnerabilities and family situation, justifies a finding of maladministration.
16. The landlord apologised, it took action to remove the resident from the list, offered compensation and explained what improvements it would make. It was appropriate for the landlord to apologise and acknowledge its mistake and show what it had learnt and how it would improve. This was in line with the Ombudsman’s principles to put things right and learn from outcomes. However, the landlord’s offer of £100 compensation, and its explanation of the steps it had taken to avoid the problem occurring in the future, was not sufficient redress given the circumstances of the case.
17. In this case, we cannot say whether the landlord’s failures specifically and directly caused or exacerbated the resident’s physical and/or mental health. Often when this type of dispute arises, a medico-legal report is required to determine what condition a resident has been diagnosed with, the prognosis and the cause of that condition. Such a report would usually be produced by an independent medical professional. Without this type of evidence, the Housing Ombudsman is simply not able to say the resident’s medical conditions were caused or worsened by the landlord. We do, however, accept the resident will have experienced distress and inconvenience given the number and duration of the failures by the landlord. We accept that the impact on the resident and her disabled son, in the Ombudsman’s opinion, justifies a higher amount of compensation.
18. The Ombudsman’s Remedies Guidance recommends a range of £250-£700 compensation for an instance of considerable service failure, including in cases of ‘misdirection’ where a landlord has offered incorrect information and where there has been a failure to act in accordance with policy over a considerable period. A compensation offer within this range would therefore have been appropriate, particularly given the landlord’s repeated failures to properly check and maintain its records.

Determination

19. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in how the landlord responded to the resident’s inclusion on its verbally abusive resident (VAR) list.

Orders

20. Within 28 days of the date of this report the landlord must pay the resident £450 compensation. This is to recognise the distress and inconvenience caused to her.

Recommendations

21. Within four weeks of the date of this report the landlord should provide this Service with an update on its progress in implementing improvements and more robust processes concerning its VAR list.