Metropolitan Thames Valley Housing (202123446)

REPORT

COMPLAINT 202123446

Metropolitan Thames Valley Housing

2 February 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:
1. The landlord’s response to the resident’s reports of antisocial behaviour (ASB) and fly tipping.
2. The landlord’s handling of the associated complaint.

Background

The resident is an assured tenant of the landlord and occupies a flat in a block (the property).
Between 20 May 2021 and 19 August 2021, the resident made eight reports to the landlord of ASB from various neighbours within the building, this included:
1. moving items late at night.
2. wedging open the communal door.
3. noise from DIY, sometimes late into the night and early hours.
4. inappropriate dumping of waste in communal bin area.
5. fly tipping of building waste under his window.
6. neighbours coming home late and making noise.
The resident raised a stage one complaint with the landlord on 9 September 2021 about its lack of response to his reports. The landlord issued its stage one complaint response to the resident on 12 October 2021 in which it acknowledged that it had not kept in contact with him nor made an action plan to tackle the ASB. The landlord said that staffing issues prevented it from making an action plan presently but confirmed it would write to all residents about the issues and carry out a block inspection. It offered him £60 compensation, £30 for his time and trouble and £30 for its acknowledged failure.
After making three more reports of ASB, which included intimidating behaviour from his neighbours, the resident escalated his complaint to the final stage on 17 November 2021. He said that he was unhappy with the officer dealing with the ASB and the landlord’s lack of ownership in dealing with the ASB. The resident also raised concerns about his neighbours subletting their property.
In the intervening period before the landlord issued its final response, the resident made three more reports of ASB and the landlord wrote to the resident on 25 January to close the ASB investigation. It said there was no evidence of enforceable ASB and the neighbour had declined mediation. The landlord’s final complaint response on 7 February 2022 detailed contact between itself and the resident in investigating the ASB and stated that it had found no evidence of failure in its handling of his reports.
The resident informed this Service on 17 and 18 August 2022 that he continued to be dissatisfied as the landlord’s account of events was inaccurate and it had not offered him third-party mediation as requested. It had also refused to consider further ASB reports from him since the closure of the ASB case and ASB from his neighbours continued. The resident terminated his tenancy with the landlord on 1 August 2022.

Assessment and findings

The landlord’s response to the resident’s reports of ASB and fly tipping

The Ombudsman notes that the resident provided photographs and video recordings as part of his submission of evidence. However, this Service is limited in the extent to which it can rely on photographic evidence as it is not possible for this Service to determine the location/circumstances of the photographs, or the validity of the images themselves. As a result, we do not generally place significant reliance on photographs in reaching our decisions. However, it is not disputed that multiple reports of ASB were made by the resident and it is the landlord’s response to these that will be considered.
The resident made several requests to raise an “official complaint” with the landlord. A distinction must be made between a complaint about ASB and a complaint about the landlord’s handling of ASB. It is not the role of the Ombudsman to establish whether ASB was actually perpetrated or by whom, nor to tackle the ASB itself. The Ombudsman seeks to determine whether the landlord acted reasonably in response to the resident’s reports of ASB.
The landlord’s antisocial behaviour policy states that it considers persistent extreme noise, harassment and intimidating behaviour to be ASB. This policy states that issues not meeting its ASB criteria will be dealt with as housing queries. The policy sets out that the landlord will respond to reports of ASB in a timely manner, stay in contact with victims and witnesses to keep them informed of progress and undertake action that is reasonable and proportionate.
When the landlord receives a complaint, or report, of ASB it would expected to investigate the report, examine evidence of the ASB, and to consider whether it would be appropriate to take enforcement action based on the nature of the evidenced ASB. It would be reasonable for it to take informal actions before carrying formal enforcement action. The ultimate outcome of any enforcement action taken by a landlord would be to evict a tenant from their property, likely rendering them homeless. Therefore, for any ASB investigation there must be a robust evidence gathering and investigation process, as ultimately a landlord would need to demonstrate to a court that it had taken all possible reasonable steps to tackle the ASB before initiating formal enforcement action.
There was no evidence of the landlord responding to the resident’s eight reports of ASB between 20 May 2021 and 19 August 2021. It was therefore appropriate for the landlord to recognise, in its stage one complaint response, that it had failed to respond reasonably to his ASB reports. Its offer of £60 to recognise this failure was not proportionate given the likely distress and inconvenience the resident experienced over these three months. It is noted, however, that there was evidence that it sent a letter to residents about the ASB and fly tipping issues, as it stated in its stage one response. This was a reasonable informal first step to address the ASB and fly tipping reports.
However, there is insufficient evidence that the landlord went on to thoroughly investigate and tackle the ASB. The contemporaneous evidence that the landlord provided to this Service detailed the following:
1. It sent a warning letter to all residents of the block on 20 October 2021 to ask them to be considerate in use of the rubbish facilities and noise generated.
2. It wrote to the resident on 15 November 2021 to summarise a discussion it had with him that week.
3. It spoke to him on 23 November 2021 about the ASB issues he had reported.
4. It met with him on 2 December to agree an action plan.
5. It wrote to the resident on 25 January 2022 to close the ASB case.
It was reasonable for the landlord to meet with the resident on 2 December 2021 and agree an action plan to address his reports of ASB and fly tipping. This plan noted that he had raised 15 concerns for investigation; however, there was no evidence of its subsequent investigation. It would be normal practice for a landlord to request evidence of ASB issues from a resident through ASB incident diaries or recording equipment; however, there was no evidence that it requested or provided these to him.
The landlord’s investigation closure letter, which it sent to the resident on 25 January 2022 referred to a three-month investigation, during which it attended meetings with the resident and his neighbours, visited the block “many times” and spoke with other residents. It concluded from this that there was no evidence of actionable ASB and instead proposed mediation which was declined by the neighbour; they preferred to speak to the resident directly.
While it may be reasonable for a landlord to propose mediation as a possible intervention to tackle issues between neighbours – which either party is within its rights to refuse – there was no evidence how it reached the conclusion that this was the most appropriate solution. The landlord’s closure letter also stated that the local authority had investigated the resident’s reports and found no enforceable ASB; there was evidence of him contacting the local authority but not of the landlord liaising with it in the course of the landlord’s own investigation.
The Ombudsman has not been provided with any other evidence of the steps taken in the above investigation. We would expect a robust investigation lasting three months to be evidenced in the form of contemporaneous emails, letters, call logs, file notes or meeting minutes. An internal email on 8 November 2022 stated that notes on the landlord’s system were inaccessible because the resident had ended his tenancy.
This was a recordkeeping failure by the landlord; it is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If we investigate a complaint, we will ask for the landlord’s records. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures. It is therefore ordered that the landlord conduct a review of its record keeping processes, ensuring that there is a clear audit trail for complaints, which provides details of specifically when contact was made, what was said, and what the agreed next steps and expectations were.
The outcome of the ASB investigation was disputed by the resident, who informed this Service on 17 August 2022 that the information in its final response contained unspecified “contradictions”, and he continued to experience ASB. He also added that the landlord would not accept reports from him about the same issues as it had already investigated them. As the landlord did not provide sufficient evidence to support the statements made in its ASB case closure letter and its final complaint response about its actions, the Ombudsman can only conclude that the landlord did not carry out an adequate investigation. The landlord, therefore, was unreasonable in not considering any further reports of ASB from the resident. It also failed to demonstrate that it addressed his reports reasonably and in accordance with its policy.
To recognise the likely distress and inconvenience experienced by the resident in being required to chase responses from the landlord and make repeated reports of ASB over the period of seven months between May 2021 and February 2022, the landlord should pay the resident compensation of £300; this is inclusive the £60 it offered him previously. This is in accordance with the Ombudsman’s remedies guidance, available to view online. This provides for awards of compensation between £100 and £600 where there has been a failure by the landlord which had an adverse effect on the resident which it did not adequately acknowledge or put right but which had no permanent impact on him.
The landlord would ordinarily be ordered to contact the resident to re-open the ASB investigation and provide confirmation of this to the Ombudsman. However as it is understood that the resident is no longer living at the property this has not been ordered.

The landlord’s handling of the associated complaint

The landlord’s complaints policy provides for a two stage complaints procedure. At stage one of this, the landlord should provide its stage one complaint response within ten working days of receipt of the complaint. At the final stage, it should provide its final complaint response within 20 working days of the receipt of the escalation of the complaint. If the landlord is unable to meet either of these timeframes, its complaint internal process states that it should agree a new timescale with the resident and provide weekly updates.
Where a complaint is made about the standard of service provided by the landlord in response to a report of ASB, it would be expected to investigate whether it acted reasonably and in accordance with its own policies and procedures. The landlord would also be expected to address all of the substantive issues raised in the complaint and put right any failings it identified.
The resident’s email on 20 July 2021 said that he had been asking for the landlord to raise an official complaint since April. This email did not detail his dissatisfaction with the landlord’s service, instead it reported a number of ASB issues. As there was no specific complaint made about the landlord’s handling of ASB, it was reasonable that a service complaint was not raised at that time. This however, does not detract from the landlord’s failure to respond to the resident to address the ASB, as detailed above, or its failure to clarify whether a service complaint or ASB complaint was an appropriate response for the situation.
The landlord did not provide its stage one complaint response to the resident within ten working days. It did keep him updated and provided him with updated timeframes in each of its holding emails; however, these were fortnightly and not weekly as specified in its policy above. The stage one response was issued within the timeframe provided in its update email. The stage one response appropriately addressed the substantive complaint which was the resident’s dissatisfaction with the landlord’s response to his reports of ASB but the resident was not kept updated weekly during the delay in compliance with its policy.
The landlord issued its final complaint response to the resident after 55 working days. This was 35 working days in excess of the timeframe specified in its policy. While it is noted that there was contact between the landlord and resident during this time about the ASB issues, there was no evidence of it updating him on the progress of his complaint about its service.
To recognise the distress and inconvenience experienced by the resident due to the landlord’s failure to progress the complaint in accordance with its complaints policy, compensation of £50 should be paid to the resident. This is in accordance with the Ombudsman’s remedies guidance which provides for compensation of between £50 and £100 for a minor failure by the landlord, which it did not appropriately acknowledge or put right, but which may not have significantly affected the overall outcome for the resident.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the resident’s reports of ASB and fly tipping.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the associated complaint.

Orders

That within 28 calendar days of this determination the landlord is to:
1. Pay the resident compensation of £300 for the failings identified with regards to its response to the resident’s reports of ASB; this being inclusive of the £60 offered in its stage one complaint response, if this has not already been paid.
2. Pay the resident a further £50 for its complaint handling failures.
3. Review its recordkeeping procedures and confirm to the Ombudsman what changes it will make to ensure that comprehensive, robust and easily accessible records are kept of its ASB investigations.
4. Confirm that it has complied with the above orders.