Sedgemoor District Council (202105004)

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REPORT

COMPLAINT 202105004

Homes in Sedgemoor

20 April 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

  1. The complaint is about the landlord’s response to the resident’s concerns about:
    1. disrepair issues at her property;
    2. the conduct of its surveyors;
    3. its decision to include her on its ‘Officer Safety Register’ (OSR).

Jurisdiction

  1. 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.
  2. Paragraph 39(a) of the Housing Ombudsman Scheme notes as follows:

39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

a) are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.

  1. As discussed further below, the resident has raised a number of disrepair issues with the landlord which are the subject of a formal disrepair claim, for which she has legal representation. As such, the landlord has responded to this claim through its own legal representative and so has not responded to the resident’s concerns through its internal complaints procedure.
  2. After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the complaint about the landlord’s response to the resident’s concerns about disrepair issues at her property is outside of the Ombudsman’s jurisdiction.
  3. If, following the completion of her disrepair claim, the resident remains dissatisfied and proceeds to make a formal complaint, once it has progressed through the landlord’s internal complaints procedure, she may then be able to refer the complaint to this service.

Background and summary of events

Background

  1. The resident has been a secured tenant at the property of the landlord since 26 October 2018. The landlord is an arm’s length management organisation for a local authority.
  2. The landlord operates a two stage complaints policy. The policy notes that where legal proceedings have been started, it will not consider the complaint under its internal complaints procedure. Following a complaint, the landlord will endeavour to provide a stage one response within 10 working days. If escalated, the complaint will then be considered by a complaints panel, made up of senior staff of the landlord and a Tenant Board Member.
  3. The landlord operates an unreasonable behaviour policy. The policy notes that unreasonable behaviour can include verbal or written abusive language, an aggressive manner, or making excessive demands from the landlord, i.e. detailed letters and expecting immediate responses. The landlord operates an OSR, which is used to protect its staff and inform them how to deal with residents it considers a risk. Entry on the OSR is for a minimum of 6 months, after which time, the entry is reviewed. In some case, entry onto the OSR may result in the landlord only visiting the resident in pairs. A resident may request an appeal of their entry on the OSR.

Summary of events

  1. On or around 7 April 2021, the resident, through her legal representatives, initiated a disrepair claim against the landlord. As part of the investigation into the disrepair claim, the landlord arranged for two of its surveyors, Mr A and Mr B, to inspect the resident’s property on 20 May 2021.
  2. During the inspection, it is not disputed that Mr A left the property due to a perceived disagreement with the resident and her partner. It is not disputed that Mr A had taken photographs of the property during the inspection, and that the resident’s partner had requested to view the photographs, which contributed to the disagreement between the parties.
  3. On the same date, Mr A sent an email to the landlord advising he had felt uncomfortable following his interactions with the resident’s partner and that he had subsequently left the property.
  4. Again, on the same date, the resident raised a formal complaint about the conduct of Mr A during the inspection. She advised Mr A had spoken down to her with a raised voice and that she was concerned he had taken photos inside her property while unaccompanied. She requested that Mr A not be allowed to return to her property.
  5. The landlord provided its stage one response on 27 May 2021. It advised that as part of its investigation into the complaint, it had obtained written statements from both Mr A and Mr B. It advised that both Mr A and Mr B had denied that Mr A spoke with a raised voice or that he spoke down to the resident. It also advised that Mr A was concerned that the resident’s partner was covertly recording him without his consent. He had also felt like the resident’s partner was “goading” him into a reaction and so he had chosen to leave the inspection. The landlord noted that the resident did not request that Mr A leave her property, “although this would seem to have been an obvious course of action if they were behaving in such a poor manner as your email describes.” The landlord concluded that Mr A and Mr B had behaved reasonably. It also advised that based on their reports about the resident’s behaviour, it had reported this to its ‘Neighbourhoods Team’ to determine if any further action was necessary.
  6. The resident subsequently denied any bad behaviour towards Mr A. She also requested that the landlord elaborate on wate the referral to the Neighbourhoods Team meant. She also advised she considered this to be an intimidation tactic due to her disrepair claim.
  7. On 9 June 2021, the landlord’s Neighbourhoods Team advised that during the inspection on 20 May 2021, Mr A had felt intimidated by the resident’s behaviour. On this basis, it had placed the resident on its OSR and that it would subsequently arrange for its staff to only visit the resident’s property in pairs. Additionally, it advised that Mr A would no longer visit the resident’s property. It further advised that this would be in place for a period of one year, after which, it would review its decision. It also advised the resident had the right to appeal its decision.
  8. It is evident that the resident subsequently requested an escalation of her complaint and also appealed the landlord’s decision to place her on its OSR. The landlord acknowledged this on 14 June 2021. On 22 June 2021, it advised it was arranging for a review panel to consider the complaint.
  9. On 24 June 2021, the resident’s legal representative sent a letter to the landlord which noted the resident’s concern that she had not been provided with a copy of the landlord’s complaints policy, nor with copies of its staff’s statements. The letter also noted the resident’s concern that she had not been able to respond to the comments made by Mr A or Mr B prior to the decision to place her on the OSR.
  10. On 8 July 2021, the resident’s legal representative sent a further letter advising that the resident had not made covert recordings during the inspection, that she had not raised her voice, and that it was reasonable for her to have requested to view the photographs taken by Mr A. The letter also reiterated the resident’s concern that these measures were only being taken due to the resident’s disrepair claim.
  11. The landlord provided its stage two response on 13 July 2021. It advised it would respond separately regarding the appeal relating to the OSR. Regarding the resident’s concerns that the allegations against her were only made following her complaint, the landlord noted Mr A had sent it an email prior to the complaint outlining his distress following the inspection. The landlord accepted that there was no evidence that the resident had been covertly recording Mr A and agreed with her comments that she should be able to record any visits, but with the condition that she request consent prior to doing so. It also noted there was a dispute from both parties as to whether there had been raised voices, but that in the absence of any evidence, it could not find that either party had raised their voice. It noted, however, that Mr A nevertheless felt challenged and uncomfortable. Based on the evidence, it could not find that either Mr A or Mr B had behaved in an unprofessional manner, nor could it conclude that it had treated the resident adversely due to her disrepair claim.
  12. On 28 July 2021, the landlord provided its appeal outcome regarding the OSR. The landlord found that there was no evidence that the resident had behaved threateningly either physically or verbally. It advised, however, that it considered the resident to have made demands that were “unreasonable or unreasonably persistent and this has provided undue stress on officer’s ability to respond,” and that its officers had “felt vulnerable in terms of their contact with you.” It therefore found that it was “reasonable for officers to attend with a colleague so that you and they are able to corroborate any discussion or agreement you have made.”
  13. Following this outcome, the resident advised that she believed it contradictory that as part of the disrepair claim, the landlord has claimed she did adequately report the repair issues, but that it now also claimed her demands on the landlord’s service were unreasonable and persistent. She also reiterated her concerns that these measures were retaliatory due to the disrepair claim.

 

Assessment and findings

Staff conduct

  1. Investigation of a complaint which involves an event that has not been recorded and includes differing accounts of what occurred can be difficult for both landlords, and for the Ombudsman. In such instances, it is the Ombudsman’s role not to determine what definitively occurred, but whether the landlord’s investigation and responses were reasonable.
  2. Following the resident’s complaint about the behaviour of Mr A, the landlord appropriately obtained witness statements from Mr A and from Mr B, who was also in attendance. While it may have been useful to have sought further information from the resident at this stage, given that the resident had provided an account of what happened as part of her complaint, it was reasonable for the landlord to rely on this.
  3. The landlord provided its stage one response within a reasonable timeframe, and provided reasonable detail about the statements of Mr A and Mr B. The resident, through her legal representatives, expressed concern that she was not provided with copies of the statements of Mr A or Mr B. Outside of a Subject Access Request, there is no obligation for a landlord to provide the resident with copies of its internal documents and so it was reasonable it did not provide copies of the statements.
  4. Given that the statements of Mr A and Mr B contradicted the account given by the resident, in the absence of any additional evidence, it was reasonable that the landlord concluded its staff had behaved reasonably.
  5. The Ombudsman notes the landlord’s comments in its stage one response that the resident should have requested Mr A leave her property if she felt uncomfortable with his behaviour. This comment was inappropriate and is akin to victim blaming. Should the resident have taken this course of action, it would not have mitigated the behaviour of Mr A had he been found to have behaved unreasonably, so it is not evident what purpose these comments serve. While being an inappropriate comment, the landlord did not rely on this when reaching its finding that its staff had behaved reasonable, and so in this instance, they do not constitute service failure. A recommendation has nevertheless been made below to improve complaints staff training around comments of this nature.
  6. The landlord also advised that Mr A had reported that he believed he was being covertly recorded and that he was being “goaded” into a reaction. The resident subsequently advised she was not recording Mr A, but that she should be able to, should she desire. The landlord appropriately agreed in its stage two response that there was no evidence that the resident was covertly recording Mr A, and that she could indeed record future visits with the prior consent of the landlord. In its stage one response, the landlord did not assert that a recording was being made, but that Mr A believed that a recording was being made at the time which led to him being uncomfortable. It was therefore reasonable for the landlord to have referred to this and it was also appropriate that it set out its position on recording visits.
  7. Both parties have accused the other of speaking in raised voices and also speaking in a tone which made the other uncomfortable. As noted above, however, in the absence of any recording of the interaction, in instances where there are conflicting reports, it is reasonable for the landlord to be unable to conclusively find service failure.
  8. Following her request that her complaint be escalated, the resident helpfully provided a more detailed account of her perspective of the inspection. The landlord appropriately acknowledged and agreed with the resident’s comments that there was no evidence she or her partner had raised their voices or made covert recordings. Given, however, that the accounts of the resident and Mr A/Mr B were conflicting, it was again reasonable that the landlord was unable to find that its staff had acted unreasonably.
  9. In her initial complaint, the resident advised one of her desired outcomes was that Mr A no longer attend her property. While the landlord was unable to find service failure on the basis of Mr A’s behaviour, it appropriately advised in its communication on 9 June 2021 that Mr A would no longer be allowed to visit her property.
  10. In summary, as noted above, in the absence of specific evidence, where there are conflicting reports of an event, it is difficult to make a definitive determination of what occurred. The landlord’s investigation of the complaint was appropriate in that it sought statements from Mr A and Mr B, and also considered the additional information provided by the resident. The Ombudsman does not dispute the resident’s perspective of what happened, but in the absence of any corroborating evidence, it cannot be determined that the behaviour of the landlord’s staff was unreasonable. It was therefore reasonable for the landlord to have come to the same conclusion in its formal responses. 

OSR

  1. The landlord’s unreasonable behaviour policy notes that it uses an OSR to record measures it has put in place when interacting with residents it considers to have behaved unreasonably.
  2. As part of the landlord’s stage one investigation, it raised concerns with its Neighbourhoods Team regarding the behaviour of the resident described in the statements of Mr A and Mr B. It would have been helpful for the resident had the landlord outlined in its stage one response what the possible outcomes were for this course of action, which it did not do. While this was frustrating for the resident and led her to have to chase this information from the landlord, this would not constitute service failure given that the information was subsequently forthcoming.
  3. The landlord’s unreasonable behaviour policy notes that measures may be taken when a resident acts in an “aggressive” manner, either physically or verbally. What constitutes “aggressive” can be very subjective. It is evident that Mr A subjectively felt uncomfortable following the inspection as set out in his email to the landlord on 20 May 2021, prior to the resident’s reports. In its communication dated 9 June 2021, the landlord advised that on the basis that Mr A had felt intimidated, it had placed the resident on its OSR and that it would subsequently arrange for its staff to only visit the resident’s property in pairs.
  4. The Ombudsman publishes guidelines on unreasonable behaviour policies (viewable here: Managing unacceptable behaviour policy – Housing Ombudsman (housing-ombudsman.org.uk)). The guidelines note that unreasonable behaviour policies must balance the objectives of being fair towards residents, and also protecting a landlord’s staff.
  5. The landlord’s unreasonably behaviour policy includes a number of different measures it can take. More severe measures such as limiting a resident’s contact to a single member of the landlord have the effect of reducing a resident’s ability to access a landlord’s services. The measure implemented by the landlord, i.e. to visit the resident’s property in pairs, does not limit the resident’s access to its services. While the resident disagrees that she in any way acted aggressively, the landlord must balance the resident’s position with its obligation as an employer to provide a workspace for its staff that they feel safe in. Given that it was reasonable to conclude that Mr A subjectively felt uncomfortable during the inspection, in the Ombudsman’s opinion, this measure was reasonable to reflect the objective of ensuring its staff feel less “vulnerable,” whilst also ensuring the resident continued to have access to its services.
  6. Following the resident’s appeal, the landlord’s appeal response agreed with the resident that there was no evidential basis to unequivocally conclude she had behaved in a threatening manner. The landlord referred to its unreasonable behaviour policy and advised that it could also implement measures in instances where there had been an unreasonable and persistent demand on its services. The landlord advised that the demands made of Mr A were unreasonable and resulted in “undue stress on officer’s ability to respond.” It is not evident what the landlord specifically considered to be an unreasonable demand and whether it was referring to the resident’s partner’s request to view the photographs taken by Mr A.
  7. The Ombudsman would expect a landlord to provide clear examples of unreasonable behaviour when implementing measures. The explanation provided in its appeal decision could have included more information to fully articulate how the resident’s behaviour amounted to making unreasonable demands. As discussed above, however, given that the measures taken do not prevent the resident from accessing the landlord’s services and also achieve the objective of ensuring its staff feel less subjectively vulnerable, the lack of specificity in the landlord’s example of unreasonable demands does not amount to service failure.
  8. The Ombudsman also notes that the landlord appropriately advised the measures would only be in place for 12 months, after which time they would be reviewed. A recommendation has been made below that the landlord write to the resident within four weeks of the date of this determination to confirm the date on which it will review the visit in pairs measure. A further recommendation has been made that should the landlord decide to retain the measures, it must provide very clear and concise examples of any behaviour on which it has based its decision.

Determination (decision)

  1. As noted above, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the complaint about the landlord’s response to the resident’s concerns about disrepair issues at her property is outside of the Ombudsman’s jurisdiction.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints regarding its response to the resident’s reports concerning:
    1. the conduct of its surveyors;
    2. its decision to include her on its OSR.

Reasons

Staff conduct

  1. In the absence of any recordings or additional evidence, the landlord’s response that it could not conclude that its staff has behaved inappropriately based on the conflicting reports of the parties was reasonable.

OSR

  1. The landlord’s decision to implement measures to only visit the resident’s property in pairs was a reasonable measure to balance the subjective feelings of vulnerability of its staff while still allowing the resident to have access to its services.

 

Recommendations

  1. The landlord to take steps to ensure that its complaints handling staff do not include statements in any response which places the blame for alleged behaviour of its staff on a resident. The landlord should also consider refresher training for its complaints handling staff, which should include consideration of this service’s guidance on remedies (available at https://www.housingombudsman.org.uk/aboutus/corporateinformation/policies/disputeresolution/guidance-on-remedies/) and the completion of our free online dispute resolution training for landlords (available at https://www.housingombudsman.org.uk/landlords/e-learning/) if this has not been done recently.
  2. The landlord to write to the resident within four weeks of the date of this determination and confirm the date on which it will review her inclusion on its OSR/visit in pairs measure.
  3. Should the landlord decide to retain the measures, it must provide very clear and concise examples of any behaviour on which it has based its decision.