Winchester City Council (202101441)

REPORT

COMPLAINT 202101441

Winchester City Council

13 February 2024

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 handling of:
1. The resident’s reports of antisocial behaviour (ASB).
2. Reports of ASB made against the resident.
3. The resident’s requests for window repairs.
4. The resident’s concern that the condition of the windows was affecting his health.
5. Medical evidence provided by the resident, and the associated housing application.
The Ombudsman has also considered the landlord’s complaint handling.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.

The resident’s concern that the condition of the windows was affecting his health

After carefully considering all the evidence, in accordance with paragraph 42(f) the Scheme, the resident’s concern that repairs to the windows and doors was affecting his health is outside of the Ombudsman’s jurisdiction to investigate.
Paragraph 42(f) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “concern matters where the Ombudsman considers it fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.
When the resident raised his stage 1 complaint with the landlord, on 22 January 2021, he stated that the issues he had with drafts from the windows and doors was impacting on his health, and making his health conditions worse.
The resident described the adverse effect the draft issue has had on his health; causing seizures due to his historical brain injury. The resident’s description of the impact it had on him are acknowledged, and the Ombudsman was sorry to hear about his ongoing health concerns. 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. The resident may wish to seek independent advice on making a personal injury claim, if he considers that his health has been affected by any action or lack thereof by the landlord.
Allegations of personal injury are serious legal complaints which must, ultimately, be decided by a court of law. The court can consider medical evidence, allegations of negligence, and make legally binding findings. Because of that, the courts are the more effective and appropriate way in which to achieve a remedy in the face of the serious allegations in this aspect of the resident’s complaint. In accordance with paragraph 42(f) of the Scheme the Ombudsman cannot consider this aspect of the resident’s complaint.

The landlord’s handling of medical evidence provided by the resident, and the associated housing application

After carefully considering all the evidence, in accordance with paragraph 42(j) of the Scheme, the landlord’s handling of medical evidence provided by the resident, and the associated housing application is outside of the Ombudsman’s jurisdiction.
On 18 December 2020, the landlord awarded the resident ‘band 2’ medical priority on the local authority’s choice based lettings bidding system. As part of his stage 2 complaint, raised in February 2021, the resident expressed a concern that the landlord had not taken the appropriate action when it received medical evidence from him. He felt that the landlord’s handling of the medical evidence impacted on his application for rehousing, and caused delays.
Paragraph 42(j) of the Scheme states that 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.
Part 6 of the Housing Act (1996) governs the allocation of local authority housing stock in England. It sets out the circumstances where reasonable preference must be given to certain applicants, when making decisions about offers of property. The reasonable preference criteria include applicants living in unsuitable conditions and applicants who need to move on medical, or welfare grounds.
The Housing Ombudsman can only consider complaints about transfer applications that are outside of Part 6 of the Housing Act (1996). The Local Government and Social Care Ombudsman (LGSCO) can review complaints about applications for rehousing that fall under Part 6. This includes complaints concerning applications for rehousing that meet the reasonable preference criteria, and the assessment of such applications
The resident’s rehousing application falls within Part 6 of the Housing Act (1996), and was dealt with by the landlord within its capacity as the local authority. As such, it cannot be reviewed by the Housing Ombudsman, and the complaint is better suited to the LGSCO. The resident may wish to raise a complaint with the LGSCO about the landlord’s handling of his rehousing application.

Background

The resident was a secure tenant of the landlord, at the time of raising his complaint, in a 1 bedroom flat in a block. The landlord recorded the resident as vulnerable due to having disabilities, a diagnosis of autism, and having mental health support needs.
The resident’s tenancy began in September 2018, and he moved into a different property in March 2021. This was due to a successful bid on the local authority’s choice based lettings system.

Summary of events

The resident called the landlord on 23 July 2020 and reported that he was experiencing ASB from his neighbours (Mr and Mrs A). The resident reported there was an altercation with Mr A, who had made threats, and assaulted his partner. The notes indicate that, during his conversation with the landlord, the resident made “threats” towards Mr A. The landlord said that it would ask the police to attend the properties, and it would speak to all parties involved in the incident.
Following a visit to the resident and Mr A, the police emailed the landlord on 30 July 2020. The police said it had viewed footage of the recent incident captured by both parties, and given “strong words of advice” that their behaviour was “not acceptable”. The police advised it was closing the case, as it had no evident of a crime, and the landlord was dealing with the ongoing issues.
The resident contacted the landlord on 10 August 2020, and reported that Mr A had put CCTV up that pointed to the stairway he used to access his property.
The landlord referred the resident to its internal tenancy support service on 11 August 2020, due to concerns about his wellbeing.
The landlord visited the resident’s property on 20 August 2020 to discuss his concerns about ASB. Its notes reflect that it offered to view the footage of the incident in July 2020, but the resident declined. The landlord advised the resident to ignore Mr A and “keep to [himself]”.
The landlord referred the resident and Mr A to the local authority’s mediation service on 2 September 2020. It outlined the issues relating to the CCTV, and the alleged threats both parties had made to each other.
The resident’s partner emailed the landlord on 8 September 2020 and said she was unhappy with the landlord’s handling of the reports of ASB. The resident’s partner asked the landlord to “do something” about the ASB before “someone else will”. The landlord responded the same day and said:
1. It was sorry the resident was still experiencing difficulties with Mr and Mrs A.
2. It had referred both parties to the local authority mediation service, in line with its policy. It would inform him of the outcome once the mediation service completed its assessment.
3. It asked the resident, and his partner, not to make comments that could be perceived as threats.
On 8 September 2020 Mr A emailed the landlord and claimed that the resident had “harassed” and “threatened” him. Mr A said the police had attended to deescalate the situation.
The local authority mediation service contacted the landlord on 16 September 2020 to explain the outcome of its assessment. It said that it was of the view mediation “would work”, as both parties had the same “end goal of living peacefully”. However, Mr A had refused mediation, so it could not progress at that time.
The landlord contacted the resident’s mental health team, on 30 September 2020, to ask it to attend a multi agency meeting. It was having the meeting due to concerns about the resident’s mental health and the impact it was having on his tenancy, as well as other issues.
The police contacted the landlord on 13 October 2020 and said it had 19 reported incidents between the resident and Mr A in the last 3 months. It had found “no substantial or actionable criminality”, but it was clear the conflict was ongoing and becoming “unsustainable” and “irreconcilable”.
The resident called the landlord on 22 October 2020 to express his concern that he was facing “ongoing harassment” from Mr A. The notes from the call reflect that the resident’s housing officer was unable to speak to him at that time. The notes say he became “angry” and stated he was going to harm Mr A. The landlord wrote the resident a ‘breach of tenancy formal warning’ letter on 26 October 2020, that said:
1. He had said to the landlord that he would “take matters into [his] own hands”. Shortly after making this comment, he was witnessed “shouting and swearing” at Mr and Mrs A in a “very intimidating manner”.
2. It reminded him of the obligations set out in his tenancy agreement not to use threatening or intimidating behaviour.
3. To ensure no further action was taken against him he was asked not to, or ask anyone else to, contact Mr and Mrs A.
4. It welcomed that he was now engaging with “appropriate support”, and it hoped this would reduce incidents with his neighbours.
The resident called the landlord on 26 October 2020 and said he was unhappy with the contents of its warning letter, and some of its contents were inaccurate. The landlord asked the resident to write to it to confirm the aspects of the letter that were inaccurate. This Service has seen no evidence to indicate that the resident did so.
The resident contacted the landlord on 6 November 2020 and said:
1. Mr and Mrs A had started “passive aggressive harassment” against him again over the preceding week and a half.
2. This took the form of waiting until he was passing their property, and opening the door and making an “unpleasant” motion towards him. They had also been “smashing” bottles into the recycling bin early in the morning.
3. He experienced a “persistent draught” from the windows in the property, and it was impacting on his health condition. The draught meant he found it difficult to heat his property properly.
The landlord raised a job, on 23 November 2020, to inspect the windows. It inspected on 9 December 2020, and followed up with an email that said:
1. It would install 4 insulated panels under the windows in the bedroom and living room. This was to help alleviate the “cold patches” and prevent the draughts.
2. It would also renew the silicone seal around the windows as “precautionary” measure.
3. It hoped to carry out the works as soon as possible, but the Covid-19 pandemic had caused a delay in the supply chain of UPVC products. It would be in touch “shortly” to give an expected date for the works.
The landlord emailed the resident on 21 January 2021 and said, as it had discussed on the phone, the agreed works would start the next day. It said it would follow up with a call in the afternoon to check the works had gone ahead as planned.
The resident contacted the landlord on 22 January 2021 to make a complaint and said he was unhappy with the repairs to the windows, and there was an issue with the seals around them.
The landlord completed a further inspection of the windows on 28 January 2021. The notes from the visit indicate it found “nothing wrong” with the window seals, and the resident “seemed to accept” its assessment. As it was difficult to identify the issues with draughts it agreed to carry out a “pressure test”. The notes state that as the resident was due to move soon, it would likely carry out the tests while the property was vacant.
The landlord sent its stage 1 complaint response on 3 February 2021, and said:
1. It acknowledged the resident’s concerns about draughts and apologised.
2. It had investigated and found “no obvious defects” that could be causing the issue.
3. It acknowledged the resident’s concern about the impact on his health, and explained it had awarded him priority banding for a move.
4. It had decided to refuse the resident’s request for compensation as it had fully investigated his concerns fully, and found no defects.
The resident contacted the landlord on 8 February 2021 and asked his complaint to be taken to stage 2, as he felt he was being “fobbed off” about the draught issue. He was felt that the landlord was not acting as he was “moving soon anyway”. The resident supplied a video that he said showed how bad the draughts were. The evidence indicates the resident moved to a new property in early March 2021.
The landlord sent its stage 2 complaint response on 19 March 2021 and said:
1. As the resident had raised numerous concerns about its handling of various issues, it had decided to address all his concerns in its stage 2 response.
2. It had inspected the property in relation to the draughts on several occasions, found no defects and found the windows to be properly fitted.
3. The landlord had inspected after the resident sent the video, as it showed a “potential issue”. But, it could not identify any evidence of a defect, at its recent visit.
4. It had offered a “pressure test” as a final attempt to identify a defect that was causing the issue. As the resident had now moved out it would do the test before a new tenant moved in.
5. It had reviewed the resident’s file in relation to his reports of ASB, and found it “made every effort” to support him, while handling the case in a “fair and even manner”.
6. It could not discuss any formal action taken against Mr and Mrs A, but it had taken appropriate action in the ASB case.
7. The resident’s comments about his neighbours were inappropriate, and he had threatened to cause them physical harm. Considering this, it found the tone of its correspondence about the allegations against the resident was appropriate.
The landlord instructed a contractor to complete an “air leakage survey” on 30 March 2021. The contractor produced a report that said the property suffered from “very little air leakage” and it had no concerns.
The resident contacted this Service on 23 April 2021 and asked us to investigate his complaint. The resident said he was unhappy with the landlord’s handling of his ASB case, and it had made “assumptions” about him due to his mental health condition. He also said he was unhappy with its handling of the draught issue.

Assessment and findings

Relevant obligations, policies, and procedures

The landlord’s nuisance and neighbour dispute procedure states that on receipt of a complaint about ASB the landlord should meet the complainant, and provide them with an ‘ASB pack’. At the meeting, the landlord should complete an ‘ASB proforma’ that documents the allegations and appropriate next steps, such as a referral to mediation.
The Government’s ‘Putting Victims First’ guidance states that reported incidents of ASB should be “risk assessed at the earliest opportunity” to ensure an appropriate response. The Government’s ASB guidance for frontline professionals states that when an ASB case needs further actions, an action plan should be completed, and shared with the complainant.
The landlord’s ‘tenancy sustainment’ procedure states that when a resident is at a high risk of eviction due to “poor mental health” it will allocate them a tenancy sustainment officer (TSO). This to support the resident to maintain their tenancy, and ensure the appropriate support from external agencies.
The repairs guidance on the landlord’s website states it has 4 categories of responsive repair that have the following target response times:
1. Emergency: 2 hours.
2. Urgent: 5 working days.
3. Routine: 12 working days.
4. Low Routine: 30 working days.
The landlord’s complaints information on its website states that it will acknowledge a stage 1 complaint within 5 working days, and send a response within 10 working days. The website states that it will send stage 2 complaint responses within 10 working days.

The resident’s reports of ASB

It is evident that this situation was distressing for the resident. It is acknowledged that the resident does not believe that the landlord responded appropriately to his reports of ASB. The role of the Ombudsman is not to establish whether the ASB reported was occurring, or not. The Ombudsman’s role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations. This investigation has considered whether its response was fair in all the circumstances of the case.
It is evident that when the resident reported concerns about ASB from Mr and Mrs A in July and August 2020, the landlord took his concerns seriously. The evidence indicates that the landlord worked closely with the police, and asked the police to visit the resident, and his neighbours, to address the concerns. This was appropriate in the circumstances and evidence the landlord sought to take a multi agency approach. The involvement of the police was also proportionate, considering the seriousness of the allegations made.
The evidence indicates that the landlord attended the resident’s property to discuss his concerns about ASB in August 2020. This was a month after the resident first reported concerns about ASB, and was an unreasonable delay. This Service has seen no evidence to indicate the landlord recorded the next steps on its proforma, or shared its next steps with the resident. This was a failure to apply its neighbour dispute procedure.
There is also no evidence to indicate the landlord conducted a risk assessment or did an ASB action plan, in line with accepted best practice. Considering the vulnerability of the resident, and the seriousness of the allegations, this was inappropriate. This caused the resident an inconvenience as he was left not knowing the actions the landlord planned to take in his case, and was not given formal advice about steps he could take.
It is noted that the landlord completed safeguarding referrals during this time, which was appropriate. However, that it did not do an internal risk assessment or create an action plan, in relation to the specific allegations of ASB, was unreasonable.
In September 2020, the landlord informed the resident that it had referred him and his neighbours to the local authority mediation service. This was appropriate, and in line with its procedure. At this time, it was apparent that the resident was agreeable to mediation, so the referral was appropriate in the circumstances. It is noted that Mr A declined, so the mediation did not go ahead. However, the landlord’s actions in relation to mediation was appropriate in the circumstances.
That the resident contacted the landlord in September 2020, due to a concern about a lack of action, is further evidence the lack of an action plan inconvenienced the resident. It was evident that the resident was unclear what action, if any, the landlord was taking in relation to his concerns about ASB. Formally setting out that it was going to refer him to mediation, from the outset, would have helped manage his expectations.
The landlord’s stage 2 complaint response, in relation to its handling of the ASB case, lacked detail and was dismissive. Its comments, that it could not share certain information is noted. However, there was a lack of assessment of its own actions, in terms of the evident concern about its handling of the case. The landlord failed to assess its actions, that it could share with the resident, and its position in relation to those actions. To simply state it had applied its policy correctly was dismissive, and not in line with the complaint handling principles set out in the Code. The Code states that complaint responses must consider all evidence carefully, which it did not do in relation to its handling of the ASB case.
It is evident that the landlord did take the resident’s concerns about ASB seriously, and adopted a multi agency approach, particularly with the police. There was an unreasonable delay in visiting the resident to discuss his concerns, and a lack of formal communication about the ASB case more generally. There is no evidence to indicate that the landlord completed a risk assessment or any actions plan in relation to the resident’s reports of ASB, in line with best practice. When the landlord did issue a complaint response on the matter, it assessment of its own actions was dismissive. As such a series of orders, and a recommendation, are set out below.

Reports of ASB made against the resident

As outlined above, the role of the Ombudsman is not to establish whether the ASB reported was occurring, or not. The Ombudsman’s role is to establish whether the landlord’s response to the reports of ASB made against the resident was in line with its legal and policy obligations.
When the resident made a comment that could have been perceived as a threat against Mr A, in September 2020, the landlord reminded him of the behaviour expected. This was appropriate in the circumstances, and the landlord’s response was proportionate.
Due to concerns about the resident’s behaviour, the landlord referred him to its internal tenancy sustainment service. This was in line with its tenancy sustainment procedure, and reasonable in the circumstances. That the resident was assigned a TSO that specialised in mental health support, was also appropriate, and evidence the landlord considered the individual circumstances of the resident. The evidence shows the landlord considered his vulnerabilities, and provided a tailored service.
The evidence indicates that the landlord was concerned about the resident’s mental health, and the behaviours he was exhibiting. The landlord’s approach was balanced and proportionate. It sought to remind the resident of what behaviour it found unacceptable, but also sought to support him to sustain his tenancy, rather than take punitive action. The evidence indicates that the TSO’s approach was thorough and supportive, and the resident had a good working relationship with them.
Due to concerns about the resident’s behaviour, the landlord arranged a multi agency meeting with mental health services, in September 2020. This is further evidence that the landlord considered the individual circumstances of the resident, and adopted a multi agency approach.
The landlord issued the resident with a breach of tenancy warning letter in October 2020. The letter outlined its expectations, and the resident’s obligations under his tenancy agreement. The letter also set out the evidence it had, that warranted issuing such a warning. It is noted that the resident disagreed with the contents of the letter, and the allegations it described. However, the evidence seen as part of this investigation indicates that the landlord acted reasonably and proportionately when deciding to issue the warning letter.
When the resident expressed a concern about the contents of the warning letter, the landlord asked him to give more information on the aspects he disagreed with. This was a fair response, as it gave the resident the opportunity to challenge its version of events. There is no evidence to indicate that the resident responded.
The landlord used its stage 2 complaint response to further explain its position in relation to the matter. It explained that, based on the resident’s comments and behaviour, that it was satisfied it acted appropriately. Its approach was appropriate and clearly outlined its position in relation to the allegations that were made against the resident.

The resident’s requests for window repairs

When the resident raised a concern about the windows, and an issue with draughts, the landlord inspected within a reasonable timeframe. It actions were within the routine timescales set out in its policy. The landlord identified works to improve the issue, and raised a works order. This was reasonable in the circumstances.
The landlord sought to manage the resident’s expectations about the repair to the windows, due to Covid-19 supply chain issues. This was appropriate in the circumstances and evidence the landlord sought to reassure the resident it would progress with the repair as soon as it could.
The landlord completed the works to the windows 41 working days after it was put on notice about the issue. It is noted that this was outside of the timeframe set out in its repairs guidance for “low routine” repairs. However, this was not an excessive delay, and the landlord had sought to manage the resident’s expectations about delays due to supply chain issues.
After the works it completed in January 2021, the resident raised a further concern about draughts. The landlord attended promptly to reinspect the windows, which was appropriate. The landlord could not identify any defect with the windows, but agreed to seek expert advice on the matter. This is evidence it took the resident’s concerns seriously and adopted a thorough approach.
The landlord’s stage 1 and 2 complaint responses were thorough in its assessment of its handling of the issue. It sought to explain what it had done to investigate the matter, and outlined what it would do to assess it further. The landlord’s approach to the matter was thorough and reasonable in the circumstances.

Complaint handling

It is evident that the resident expressed concerns throughout 2020 about the landlord’s handling of his ASB case. That it did not raise a formal complaint about it handling of the ASB was inappropriate, and a failure to apply the Ombudsman’s Complaint Handling Code (the Code). The Code states that a complaint is an expression of dissatisfaction, however made. Given the clear expression of dissatisfaction from the resident, not to address his concerns by completing a complaint investigation, was unreasonable. The resident experienced an inconvenience of raising concerns about a service received, without the landlord formally responding to his concerns, or reflecting on its own actions.
It is noted that the landlord did incorporate the resident’s concerns about its handling of the ASB case, into its stage 2 complaint investigation. This went some way to putting right the above failing. However, the lack of acknowledgment or apology for its failure to address the matter as a complaint sooner, was inappropriate.
This Service has seen no evidence to indicate that the landlord formally acknowledged the resident’s stage 1 complaint. The Code states complaints must be acknowledged within 5 working days, and a landlord “must set out their understanding of the complaint and the outcomes the resident is seeking”. The resident missed an opportunity to ensure the landlord had the correct understanding of the issues complained about.
The landlord’s stage 2 complaint response was sent 29 working days after the resident asked his complaint to be considered at stage 2. This was 19 working days outside of the timeframe set out in its policy, and 9 working days outside that set out in the Code. It is noted that this was not an excessive delay. However, that the landlord did not acknowledge, or apologise for, the delay was a shortcoming in its complaint handling.
The landlord’s actions in not opening a complaint about its handling of the resident’s ASB case were unreasonable. Despite appropriately addressing the ASB at stage 2, its response was dismissive and lacked a meaningful assessment of its own actions. This, combined with the inconvenience caused by its procedural shortcomings, amount to a finding of maladministration in the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s reports of ASB.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of reports of ASB made against the resident.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of the resident’s requests for window repairs.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Reasons

The landlord took the resident’s concerns about ASB seriously, and adopted a multi agency approach. There was an unreasonable delay in visiting the resident to discuss his concerns, and a lack of formal communication about the ASB case more generally. There is no evidence to indicate that the landlord completed a risk assessment or any action plans in relation to the resident’s reports of ASB, in line with best practice.
The landlord took a supportive, and proportionate, approach to the reports of ASB made against the resident. It tailored its service to the individual circumstances of the resident, and considered his vulnerabilities. It sought to outline expected behaviours, and the resident’s tenancy obligations, but did not take any punitive action. The landlord sought to help the resident manage his behaviour, and the resident’s TSO built a good working relationship with him.
The landlord inspected and carried out repairs to the windows within a reasonable timeframe. It also sought to manage his expectations about supply chain issues, due to the Covid-19 pandemic. After the repair it promptly inspected the windows when further concerns were raised. It agreed to get an independent expert to inspect, as it could not identify any defects. Its approach was reasonable in the circumstances.
The landlord failed to open a complaint, despite receiving an expression of dissatisfaction about its handling of the ASB case. Its final response about the ASB was dismissive. The landlord failed to formally acknowledge the resident’s stage 1 complaint. There was a delay in issuing its stage 2 complaint response, which it failed to acknowledge, or apologise for.

Orders

Within 4 weeks the landlord is ordered to:
1. Apologise for the failings identified in this report.
2. Pay the resident £350 in compensation, made up of:
  1. £200 in recognition of the inconvenience caused by its handling his reports of ASB.
  2. £150 in recognition of the inconvenience caused by its complaint handling.
Within 8 weeks the landlord is ordered to:
1. Conduct training with its staff responsible for overseeing ASB cases, with a particular focus on:
  1. Appropriate timeframes in which to interview residents who report ASB.
  2. The importance of formally communicating actions it will take, and actions the resident needs to take (action plans).
  3. Accepted best practice set out in the Government’s ASB statutory guidance for frontline professionals (revised March 2023).

Recommendations

It is recommended that the landlord reviews its ‘nuisance and neighbour disputes’ procedure to incorporate accepted best practice in relation to handling ASB cases. This should include the need to risk assess, and formulate action plans.