Wokingham Borough Council (202205406)

REPORT

COMPLAINT 202205406

Wokingham Borough Council

21 August 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 landlord’s handling of the resident’s reports of antisocial behaviour (ASB).

Background

2. The resident holds a secure tenancy with the landlord. The property is a ground-floor flat. The resident has health conditions.
3. On 14 January 2022 the resident reported to the landlord that his neighbour had verbally abused him after he had challenged them about a plastic bottle being thrown towards him. The landlord responded the same day and advised him not to engage with his neighbour.
4. On 13 February 2022 the resident reported that a neighbour was shouting at their partner when they ‘went towards’ his mum which upset him. The landlord responded the following day and asked if he had called the Police about the incident.
5. On 16 February 2022 the resident raised a formal complaint. He said that the neighbour had caused trouble with him as well as other residents. He was unhappy with the way the landlord had handled historical reports of ASB from 2015 and said that the landlord should have done its job properly back then and that he had no faith in it. He said that he had tried to speak with someone higher but was unable to. In addition, he said he now felt unsafe. As a resolution to his complaint, he wanted the landlord to deal with the issue instead of ‘brushing it under the carpet.’
6. On 28 March 2022 the landlord responded to the complaint at stage 1 of its complaints process. In summary, the response said:
   1. The majority of reports were historic, and it would be unable to consider them.
   2. It had advised him to record incidents in the required format to investigate.
   3. It had very few records within the last three months and what it did have appeared to be disputes between neighbours rather than ASB. These incidents had been dealt with by the Police or his Housing Officer.
   4. It advised him to engage in mediation between himself and his neighbours and that it would help facilitate this.
7. Following further reports of verbal abuse and threats , the resident asked the landlord to escalate his complaint on 5 August 2022. He said that the stage 1 response was ‘disgraceful’, and that the harassment was continuous and affecting his health. He felt that the situation would continue if the landlord did not act.
8. On 12 August 2022 the landlord issued its final response. It reiterated its position from its stage 1 response and in addition, it said:
   1. That the complaints process only allowed it to consider whether the landlord provided correct guidance on how it managed ASB reports. It believed this to be the case and was unable to comment further.
   2. ASB cases cannot be considered through the complaints policy and since it had not seen evidence of fault in how his concerns were handled it was inappropriate to consider this matter further.
9. In the resident’s complaint to the Ombudsman, he said that he was unhappy with the way the landlord had treated him and that the situation was making his health worse. Additionally, he stated that the issues were ongoing and questioned when the landlord was going to act.

Assessment and findings

Scope of investigation

10. The resident has provided this service with correspondence relating to historical incidents of ASB from 2017 to 2021. It is unclear if the resident made a formal complaint or exhausted the landlord’s internal complaints procedure from this time, however it is noted the resident first brought a complaint to the Ombudsman attention in June 2022. Residents are expected to bring a complaint to the Ombudsman’s attention in a reasonable timeframe. As such, the investigation will not consider the events that occurred from 2017 to 2021. However, this assessment will focus on the landlord’s actions in response to the resident’s reports from 14 January 2022 up to the landlord’s final response in August 2022.
11. In the resident’s complaint to this Service, he raised concerns that the reported ASB was making his health worse. The Ombudsman does not doubt the resident’s statement. However, it is beyond the expertise of this Service to make a determination on whether there was a direct link between the landlord’s handling of ASB and the resident’s mental health. Often when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or deterioration of a condition. Without that evidence, this Service is not able to draw any conclusions on whether the resident’s health has been affected by the way in which the landlord handled the ASB case. This question may be better for the courts to decide, where an expert can be cross-examined during a live hearing. The resident therefore 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.

The landlord’s handling of the resident’s reports of antisocial behaviour (ASB).

12. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution: 

a.         Be fair – treat people fairly and follow fair processes; 

b.         Put things right, and; 

c.         Learn from outcomes. 

13. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.
14. When assessing complaints about the landlord’s handling of reports of ASB, the Ombudsman’s role is to assess whether the landlord has adequately investigated the reported issues and taken appropriate and proportionate action in line with its policies and procedures.
15. The landlord’s ASB policy states that at first contact with a resident, it will book an appointment to interview the complainant within five working days and complete a risk assessment. While the landlord’s records showed that it responded to his report in January 2022 the same day, the Ombudsman has seen no evidence that it carried out a risk assessment. Given the resident had reported verbal abuse from his neighbour it should have completed a risk assessment. The landlord did not act in accordance with its policy and this was a failing on its part.
16. The landlord’s ASB policy also states that upon an initial report, it should agree on an action plan with the complainant and send out diary sheets. Further, the policy states that the landlord must arrange a separate interview with the alleged perpetrator. The Ombudsman has seen no evidence of this. While the evidence indicated that this was an ongoing neighbour issue that involved various allegations and counter-allegations, it is unclear why the landlord did not follow its policy and why it took it until September 2022 to send out diary sheets to the resident.
17. A month later the resident reported that a neighbour ‘went towards’ his mum. The landlord responded promptly and asked the resident if he had reported the incident to the Police and what the crime reference number was. While this was a reasonable response, the Ombudsman has seen no evidence of any follow-up to this. This may indicate issues with the landlord’s record keeping and the Ombudsman would have expected the landlord to follow this up with the resident and, if necessary, the Police within a reasonable timeframe.
18. Following the landlord’s stage 1 response, the landlord’s records indicated that it had reviewed video footage sent to it by the resident in May 2022, where the landlord confirmed that part of the footage showed a neighbour threatening the resident. The landlord subsequently informed the resident that it had passed this information on to the Police. Although this was an appropriate response, the Ombudsman has not seen evidence to confirm that the landlord did this. Further, there was no evidence that the landlord took any action to address the incident with the perpetrator, in line with its ASB policy.
19. The landlord visited the resident at the end of June 2022 where it asked about the threats towards him and whether he felt in fear. The resident responded to say he did not. The landlord subsequently told the resident to contact it if he was worried or received more threats. At the beginning of July 2022, the resident reported that a neighbour had verbally abused him and threatened him with violence. Again, the landlord responded promptly and advised him that it would contact the Police; however, it is not clear whether it did, and, in any case, the landlord should have interviewed the alleged perpetrator/s as per its ASB policy. This states that the landlord must arrange an interview with an alleged perpetrator. Although the landlord’s records indicated that it had been in dialogue with his neighbour/s, the Ombudsman has seen no evidence of these conversations, and it is unclear clear whether any interview took place. Additionally, there was no evidence that the landlord had kept the resident updated on its actions.
20. Overall, the landlord’s handling of the resident’s reports of ASB was contrary to its policy. While its suggestion of mediation was reasonable in the circumstances, and its records suggested it had been liaising with the Police over some of the more serious reports, it failed to develop an action plan with the resident or carry out a risk assessment, despite several opportunities to do so. Further, it is unclear whether it made any attempts to investigate the allegations of verbal abuse or threats. Although the landlord may have deemed these allegations as criminal behaviour this should not have prevented the landlord from taking a proactive approach to the reports, particularly as it had been provided with supporting video evidence.
21. While this service acknowledges that this was a difficult situation for the landlord to manage, there were failures from the landlord that would have caused distress and frustration to the resident, who clearly felt that his concerns were not being taken seriously. The landlord failed to identify these via its complaint process, and therefore its responses to the resident’s complaint were unreasonable, causing further distress. The Ombudsman remedies guidance (published on our website) sets out the Ombudsman’s approach to compensation. The remedies guidance suggests that compensation of £100 and above should be considered where there have been failures from the landlord that have adversely affected the resident. The landlord should provide redress to the resident for the service failures identified in this report and an order of compensation is made below for remedy.

Determination

22. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s reports of antisocial behaviour (ASB).

Orders

23. The landlord must, within the next 28 days, take the following action:
    1. Pay the resident £400 compensation for distress and inconvenience caused by the landlord’s handling of the resident’s reports of antisocial behaviour (ASB). The landlord must provide evidence that it has attempted to make the above payments to the resident within 28 days of the date of this determination.
    2. If it has not already done so in the last year, conduct a staff training exercise to ensure that all staff members involved in ASB cases deal with reports in line with its ASB policy.
    3. The landlord should carry out a risk assessment on the resident and provide an action plan regarding how it will investigate any ongoing ASB concerns (with a copy also provided to the Ombudsman).

Recommendations

24. It is recommended the landlord carry out a review of its ASB record keeping.