Wandsworth Council (202118127)

REPORT

COMPLAINT 202118127

Wandsworth Council

17 March 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 concerns:
1. How the landlord responded to the resident’s reports of antisocial behaviour (ASB).
2. The information provided by the landlord to the resident relating to incentive payments for downsizing properties.

Background

The resident is a secure tenant of the landlord, which is a local authority. The property is a flat. The resident moved into the property in May 2021. As part of moving out of her previous property, the resident was eligible to receive an under-occupation incentive payment via the landlord’s housing allocation scheme. The landlord wrote to the resident on 11 May 2021 and requested her bank details in order to make the payment. This letter also informed the resident that any arrears she had with the landlord would be deducted from the payment.
On 9 June 2021, the resident wrote to the landlord to inform it of ASB she had experienced from children playing ball games in the area and kicking a ball against her garden fence. This report was logged by the landlord and a call back was arranged to discuss the matter further. Between 9 June 2021 and 1 August 2021, the resident made further reports of ASB relating to noise nuisance, harassment from neighbours and fly tipping. The landlord informed her that would arrange for the rubbish to be removed, provided her with a telephone number to ask for a staff member to visit her in order to witness any further harassment she experienced and advised the resident to contact the police if she felt unsafe. The resident informed the landlord on 1 August 2021 that she had made an ASB report to the police and the landlord stated that its police liaison team would make contact with both her and the police to discuss the matter further.
The landlord informed the resident on 9 September 2021 that due to her arrears, that she would not receive any funds from the under-occupation incentive payment. The resident disputed this decision. She noted that she was currently challenging her council tax arrears, therefore none of the funds from the payment should have been used to clear her debt.
On 5 November 2021, the resident contacted this Service to state her dissatisfaction with how the landlord had handled her ASB reports and the under-occupation payment. She described the elements of the complaint as:
1. She was expecting a £2,000 under-occupation incentive payment for moving into a smaller property. As a result of not receiving this payment, she had been unable to purchase furniture for the new property. The resident was dissatisfied with how this process was handled as she had not received a full explanation from the landlord as to why the money was withheld.
2. She had made several reports of ASB to both the landlord and the police. The landlord had not acted on these reports and the ASB had continued.
3. She had been sent several letters about rent arears despite her rent account being up to date.
4. These issues had caused her stress and inconvenience, and also had an adverse effect on her existing health conditions.
This Service passed on the resident’s complaint to the landlord on 8 November 2021. The landlord opened a formal complaint and sent a stage one complaint response to the resident on 29 November 2021, then a stage two complaint response on 6 January 2021. In its complaint responses, the landlord:
1. Stated that the resident was informed at the time the property was offered to her that any debt she had with the council would be deducted from the incentive payment. The landlord acknowledged the frustration caused to the resident that the entire payment was used to pay her arrears, but it was satisfied that it had properly explained the process to her.
2. Explained that the rent for the property was due to be paid weekly, but that the resident had been making monthly payments. This had resulted in its system auto-generating letters when weekly payments had not been made. The landlord had informed its resource department that the resident was making monthly payments and as long as the payment covered the total amount of rent owed, these letters would no longer be generated.
3. Summarised the ASB reports it had received from the resident and the action it had taken. The landlord confirmed it had arranged for the rubbish to be cleared when the resident reported fly tipping and that bollards had been reinstated on the footpath to prevent cars from parking close to the building’s front entrance, which the resident had also raised when making ASB reports.
4. Explained that in regard to the more serious allegations of ASB made by the resident, including harassment she had received from some neighbours, the landlord had been unable to take action against any individuals as it had not yet gathered sufficient evidence. The landlord informed the resident that it would continue to work with both her and its police contact on the safer neighbourhood team, and stated that if sufficient corroborating evidence was gathered, it would look to take tenancy enforcement action if warranted.
In referring the case to this Service, the resident described the outstanding issues of the complaint as that the landlord should not have used any funds from the incentive payment to pay her council tax arrears and that she was still experiencing ASB. The resident further explained that she did not feel that landlord had taken her reports of ASB seriously.

Assessment and findings

Relevant Policies and Procedures

Section 12 of the tenancy agreement sets out the circumstances where the landlord may look to take action against a tenant as a result of their behaviour. This, in part, states that the landlord may end a tenancy “If you or a member of your household or a visitor does anything which causes, or is likely to cause, a nuisance to anyone in the local area, or uses or allows your home to be used for immoral or illegal purposes or commits a serious criminal offence in the locality. If you or anyone living with you damages any part of the property or the communal areas either deliberately or by neglect”.
The landlord’s ASB policy defines antisocial behaviour as “(a) Conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, (b) Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or (c) Conduct capable of causing housing-related nuisance or annoyance to any person”.
The policy goes on to state that when it receives an ASB report that the estate manager or senior estate manager will discuss the issue with the complainant and agree a plan of action, which may include:
1. “Talking to the perpetrator, if appropriate.
2. Interviewing or writing to the perpetrator.
3. Arranging a mediation interview.
4. Progressing legal action to resolve an ASB incident.
5. Involving and working with partner agencies.”
The ASB policy states “once the case has been opened it is best practice to contact the complainant to advise them that the incident /case is being investigated and they will be contacted with updates as appropriate”. The policy notes that all ASB reports should be recorded on the landlord’s system within five working days of them being made.
Section 4 of the ASB policy relates to what support the landlord offers to victims, complainants, witnesses and perpetrators. This, in part, states that:
1. “Support for complainants is key to dealing with ASB and all reports must be responded to professionally and confidentially.
2. Wherever possible, contact complainants in the way they prefer e.g. phone, letter, email, visit.
3. Where relevant advise on how to complete a nuisance diary sheet.
4. Be clear about what the [landlord] or agencies may be able to do and advise how the complainant may go about resolving the problem themselves e.g. speaking to the perpetrator or by mediation.
5. Don’t expect the complainant to do anything they do not wish to do but explain this may mean the case cannot be pursued (e.g. if they do not want the perpetrator to be contacted).
6. Gather evidence and review possible legal action against the perpetrator.
7. Gather hearsay evidence or use a professional witness if it is clear there is likely to be reprisal from the perpetrator.”
Annex B of the landlord’s housing allocation scheme describes the landlord’s room to move scheme and under-occupation payments. This states that “Incentive payments are calculated on the number of bedrooms being released in the tenant’s present home and the number of bedrooms in the new home. The payment will also be adjusted if any member of the household/family is rehoused separately or likely to be offered housing by the council. Other incentives are considered on a case-by-case basis”.
Section 4.7 of the housing allocation scheme relates to applications. Section 4.7.13 states that “under-occupiers with rent arrears and other charges will be considered for a move on condition that the arrears will be deducted from any incentive payment. If the arrears exceed the payment by four weeks or more full rent, the applicant may be considered for a move on condition that an undertaking is made to clear the debt within an agreed timescale”.

Scope of Investigation

In her correspondence with the landlord and with this Service, the resident has described her medical conditions and the effect on these conditions that the ASB has caused. The Ombudsman does not doubt the resident’s comments. However, it is beyond the remit of this Service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s health. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord.
The resident has stated that as she is currently disputing her council tax debt, that the under-occupation incentive payment should not have been used to clear her arrears. This Service can only consider complaints about local authorities when it is acting as a landlord. Therefore, while we can look at the housing allocation scheme, the under-occupation incentive payment and what information the landlord has provided the resident about the scheme; it is not within the remit of this Service to consider council tax payments or arrears. This is in line with paragraph 42(k) of the Housing Ombudsman Scheme which states that we will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator, or complaints-handling body. This Service has written separately to the resident providing information on what agencies and bodies can offer support and advice in regard to the elements of the complaint that are not in the jurisdiction of this Service to investigate.

How the landlord responded to the resident’s reports of ASB

Once it had received the reports from the resident about the noise nuisance and ASB she was experiencing, the landlord had a duty to respond to the matter in line with the obligations set out the tenancy agreement and its published policies and procedures.
Overall, the landlord acted appropriately to the resident’s reports. The landlord’s records show that the ASB reports made by the resident were correctly logged on its system within its five working day timescale. The landlord’s records also show that it acknowledged the reports and contacted the resident to discuss the issues further. For the issues that the landlord could take immediate action on, it did so by clearing the rubbish that had been fly tipped and installing bollards to prevent vehicles being parked close to the building entrance. However, the landlord has yet to take any formal action against any individual in relation to the resident’s reports of nuisance, harassment and damage caused to her fence.
The landlord’s records and internal correspondence show that it responded to the more serious ASB reports by arranging to discuss the issues in more detail with the resident, providing the resident with a telephone number she could call for a staff member to attend and witness any further incidents, and arranging for a staff member to inspect the estate and meet with neighbours. This was appropriate for action to take in line with the guidance set out in its ASB policy in order for it to collect supporting evidence that can be used to take action against an alleged perpetrator of ASB, as the type of behaviour described by the resident would be in breach of the clauses of the tenancy agreement detailed above.
When the resident informed the landlord that she had made a police report, the landlord contacted the police and requested information on the incidents. The landlord has provided its correspondence with the police officer handling the resident’s case, who informed it that from the evidence it had received up to that point, that it had not been able to identify any of the alleged perpetrators and would not be taking any further action.
Therefore, there is no evidence of service failure in how the landlord responded to the resident’s reports of ASB. The reports were correctly recorded by the landlord in line with its policy detailed above. The landlord also followed its ASB policy in looking to work with the resident and the police in order to gather supporting evidence to put it in a position to take action. While the upset and frustration of the resident that action had yet to be taken is wholly understandable, it was reasonable that the landlord did not take any enforcement action against any individuals during the time period considered in this complaint given the lack of supporting evidence.
When providing evidence to the landlord for the complaint, the resident provided a letter from her GP which described her medical conditions. A work order for work and repairs to be completed to the property’s kitchen raised on 15 December 2021 described the resident as a “tenant with disability”. However, when providing evidence for this case, the landlord has stated that it had no vulnerabilities recorded for the resident.
Therefore, it is recommended that the landlord review the records it holds on the resident to ensure they are up to date and that any vulnerabilities and/or disabilities are correctly recorded on its system.

The information provided by the landlord to the resident relating to incentive payments for downsizing properties

The landlord wrote to the resident on 5 May 2021 offering her the tenancy of the property. This letter also addressed the under-occupation incentive payment. The letter explained that “you will need to remove all your belongings and rubbish, should you leave anything behind you will be charged for the costs of any removals/storage. You may also be charged for any repairs that the Council have to carry out which were your responsibility, or were caused by a breach of your tenancy conditions. Any such charges could be deducted from your incentive payment and affect the amount you could receive. Please contact your estate manager if you need to clarify your repairing obligations”. On 11 May 2021, the landlord wrote to the resident again to request the information it required in order to process the incentive payment. This letter informed the resident that “any monies that are owed by you to the council will be deducted from this payment before it is paid into your account”.
The resident sent an email on 24 May 2021 in response to the 11 May 2021 letter. She informed the landlord that she had outstanding council tax arrears and provided it with information on the outside agency that was supporting her in resolving the matter.
Therefore, there is no evidence of service failure by the landlord in the information it provided to the resident relating to the incentive payment. The Landlord correctly explained to the resident the application process as set out in section 4.7 of the housing allocation scheme detailed above. The two letters it sent to the resident in May 2021 clearly explained that the payment would be used to cover any arrears the resident had with the local authority and also cover any costs associated with her previous property. Moreover, in her email sent on 24 May 2021, the resident has stated that she had council tax arrears and therefore was aware that this would affect the payment. As previously stated, it is not within the remit of this service to assess the resident’s council tax and any arrears.
During their discussions at stage one of the complaint process and in an email sent on 15 December 2021 requesting an escalation of the complaint to stage two, the resident has described the financial difficulty not receiving the incentive had caused her. The resident explained that she had been unable to buy furniture for the new property without the payment. The landlord did not address this element of the complaint in its responses and there is no evidence that it wrote to the resident separately about this issue. Therefore it is recommended, if it has not done so already, that the landlord write to the resident to inform her about what help and support is available to assist in the purchase of furniture for the property, such as community care and/or discretionary support grants.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of:
1. How it responded to the resident’s reports of ASB.
2. The information it provided to the resident relating to incentive payments for downsizing properties.

Recommendations

It is recommended that the landlord review the records it holds on the resident to ensure they are up to date and that any vulnerabilities and/or disabilities are correctly recorded on its system.
It is further recommended, if it has not done so already, that the landlord write to the resident to inform her what help and support is available to assist in the purchase of furniture for the property, such as community care and/or discretionary support grants.