Decision : Upheld
Decision date : 19 Oct 2020
The Ombudsman's final decision:
Summary: Mrs B complains about the way the Council investigated her company. She says an officer repeatedly contacted her and other family members, and visited their homes, which caused distress. She says the officer posted personal data about her to the wrong address. The Ombudsman does not find fault in how the Council carried out its investigation. However, we find fault in the Council not updating Mrs B and in its responses to her complaints.
- The complainant, who I refer to as Mrs B, complains the Council investigated her company without first properly understanding the nature of the company. She says an officer then repeatedly tried to contact her and visited her home, and that of family members. Mrs B says this caused distress and amounted to harassment. Mrs B says the officer also posted information about the investigation to the wrong address. She says the Council did not properly respond to her complaints.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
What I investigated
- I have investigated Mrs B’s complaint about the way the Council’s enforcement investigation took place.
How I considered this complaint
- I considered the information Mrs B provided and spoke to her about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments.
What I found
Legislation and policy
- The Redress Schemes for Lettings Agency Work and Property Management Work (Requirement to Belong to a Scheme etc) (England) Order 2014 (“the Order”) says that a person who engages in lettings agency or property management work must be a member of a redress scheme for dealing with complaints.
- The Order says it is the duty of every enforcement authority to enforce the requirement. Where the authority is satisfied, on the balance of probabilities, that a person has failed to comply, it may issue a penalty of up to £5,000. The person then has a right of appeal to the First-tier Tribunal.
- The Regulators’ Code (‘the Code’) is a statutory framework for how regulators should engage with those they regulate. It says regulators should clearly explain what the non-compliant item or activity is, the advice being given, actions required, or decisions taken, and the reasons for these. It says regulators should make available to those they regulate, clearly explained complaints procedures, allowing them to easily make a complaint about the conduct of the regulator.
- The Council’s complaints policy says it should respond to Stage 1 complaints in 10 working days, with an extension of up to 20 working days if needed. At Stage 2 it should respond to complaints within 25 working days, with an extension of up to 60 working days if needed. Stage 3 consists of a member complaint review panel, or the Council may refer the complainant directly to the Ombudsman.
- In October 2018, the Council received a complaint about a company (“Company A”). The complaint said Company A should be a member of a redress scheme but was not. Mrs B is registered as a director of Company A.
- An officer from the Council visited the company’s registered address. No one answered so she posted a compliments slip through the door asking for a call back. Two days later the officer emailed the company’s email address. In the email, the officer included the address she attended. She included the name of a town that neighbours Mrs B’s town.
- A week later, the officer telephoned the company’s registered number and left an answerphone message. She called again a week after that, in early November 2018, but did not leave a message.
- The officer emailed again after another 10 days. The email explained the complaint was about not belonging to a redress scheme. It said if Mrs B did not get in touch the Council would need to take further action and she could face a fine of up to £5,000. The officer called and left a further answer message the following week, in late November 2018.
- The officer did not receive a response so searched Companies House public records, which identified three directors of Company A and their addresses. The officer visited each address but there was no answer, so she posted her business card through each door asking for a call back.
- The same morning, Mrs B responded to the email the officer sent in late October 2018. Mrs B said Company A did not have an office in the town the officer had specified and raised concerns about information being posted to the wrong address. Mrs B sent another email the following day, in which she said Company A was not a lettings agent or property management company. She said the complaint was bogus, the Council was using intimidation tactics and was harassing her and her family.
- The officer emailed Mrs B and asked her to call so they could discuss the matter. Mrs B responded that all communication should be in writing. She asked for a swift response to her email and an apology or she would escalate the matter.
- In December 2018, the officer visited the complainant to take a statement about her complaint. She reviewed the documents the complainant provided and concluded that Company A did not appear to be the relevant property management company. This was another company, Company B, who contracted out to Company C. Mrs B was also a registered director of Company B and a former registered director of Company C. The Council did not take any further action in respect of Company A, but continued its enforcement investigation with Company B and Company C.
- In June 2019 Mrs B sent a letter of complaint to the Council. She said she had not heard anything further from the officer since her email asking for an apology. She asked for a full response. The Council responded in July 2019. It did not uphold her complaint and said the enforcement investigation was ongoing so it could not provide any further detail.
- Mrs B made a further complaint, in which she said the officer visiting her and her family’s homes amounted to cold calling. She said she was on holiday when the harassment began. Mrs B said Company A was not a property management company but a private family trust. The Council does not have any record of responding to this letter.
- In November 2019, Mrs B chased for a response. The Council provided a response, in which it said the officer was legitimately carrying out her duties and cold calling was something entirely separate. It said the Council had now concluded its enforcement investigation into Company A as the evidence did not show a link between this and the other companies being investigated.
- Mrs B responded to say the Council should have given her details of the Ombudsman so she could complain to us. She asked the Council to provide our details. The Council has not provided a record of it sending any response.
- Mrs B raised the matter with her MP, who contacted the Council. The Council responded that Company A was a property management company and should be part of a redress scheme. It said it served notice on Company A. It said Company A appealed to the First-tier tribunal, who found in the Council’s favour. Mrs B pointed out that she did not appeal on behalf of Company A as the Council did not issue a notice in respect of that company. The Council then clarified that it issued the notice to Company C, which has a similar name.
- I have investigated the following matters:
- The way the enforcement investigation took place
- How the Council responded to Mrs B’s complaints
- I do not find fault overall with the way the enforcement action took place. However, I find fault in the Council not notifying Mrs B of its outcome.
- I understand the Council’s attempts to contact her may have caused Mrs B distress but cannot find this is because of any fault by the Council. The Council has a legal duty to investigate complaints of this nature. As part of that investigation it is normal for the Council to contact the company, including anyone listed as a director, as part of its information gathering.
- The reason the officer made several attempts to contact Mrs B and also visited the other people listed as director, is because she did not respond. I appreciate Mrs B was on holiday and this is why she did not respond. However, the Council could not have known that. It is not fault for the Council to continue chasing until it received a response, or for outlining the legal framework, and associated penalties, under which it was investigating.
- In the Council’s chronology it says that in January 2019 its officer reviewed the relevant documentation and established that Company A was not the relevant company. It therefore suspended its investigation into that company but continued its investigation into Company B and Company C. There is no evidence it updated Mrs B about the position with Company A. Mrs B’s complaint in June 2019 suggests she did not know the Council was no longer investigating Company A.
- It is my view this is fault. The Council should have provided some update or outcome to Company A (Mrs B being its director), even if it was continuing the investigation with the other two companies. It should have done so in January 2019 and again when she complained in June 2019. The Council did not tell Mrs B it had suspended the Company A investigation until November 2019. This caused some uncertainty to Mrs B about how the Council was dealing with the complaint against Company A.
- I find fault in the Council’s complaint responses.
- The Council’s first response was slightly over the 20-working day timeframe for responding. This in itself is not so significant that I would find fault. However, the Council then did not respond to Mrs B’s second stage complaint until she chased more than three months later. This is fault and meant Mrs B spent time and trouble chasing for a response.
- The Council says that it did not investigate the complaint under its formal complaint procedure and therefore the timelines do not apply. This is fault. It was clear Mrs B was making a formal complaint and the Council should have investigated it under that procedure. Even if this was not clear, it would still be fault for the Council to not respond to or acknowledge Mrs B’s letter for three months.
- It is also fault that the Council did not provide Mrs B with details of how to escalate the complaint to Stage 3 or provide contact details for the Ombudsman. It is clear in the Council’s complaints policy that it should do so. It meant Mrs B needed to chase for our details and, again, there is no evidence the Council responded to that chase. I understand the Council did not do so as it had not managed the complaint under its formal procedure. However, it should have done so.
Consideration of Remedy
- The fault I have identified is mainly around communication. I recommend the Council apologise to Mrs B for not updating her or responding to her complaint within the relevant timeframes.
- We can recommend the Council provide financial redress to recognise any distress or time and trouble caused to the complainant. In either case, we would normally recommend between £100 and £300, depending on the level of injustice caused.
- I understand Mrs B is very distressed about the overall way in which the investigation took place. However, I have not found fault with the main things that distressed Mrs B, such as the officer’s attempts to contact her. Therefore, I cannot recommend a remedy that follows on from this.
- The injustice I have identified is uncertainty from not receiving responses, and time and trouble she spent chasing. The length of time before Mrs B received an update about Company A was significant, as was the time before it responded to her Stage 2 complaint. However, Mrs B did not repeatedly chase during these periods and the Council did respond when she chased. Therefore, the level of injustice is limited. I recommend the Council pay Mrs B £100.
- I also recommend the Council provide evidence it has reminded staff of the need to investigate and escalate complaints under its formal procedure, within the published timeframes.
- The Council has agreed to, within a month of this decision:
- Apologise to Mrs B for the delay in updating her about the status of the investigation into Company A, for not investigating her complaint in line with its formal complaint procedure and the delay in responding to her second complaint
- Pay Mrs B £100 to recognise the uncertainty and time and trouble caused
- Provide evidence it has reminded staff of the need to investigate and escalate complaints under its formal procedure, within the published timeframes
- The Council is not at fault in how it carried out its enforcement investigation. However, it is at fault for not updating Mrs B and its responses to her complaints.
Parts of the complaint that I did not investigate
- I have not exercised my discretion to investigate Mrs B’s complaint about a breach of data, because it is unlikely I could find fault.
- The Council confirmed it made a typographical error in its email, by referring to the wrong town. However, the address it visited was the correct address. I can see how this error occurred as the two towns are adjoined and Mrs B lives near the border between the two. I can see no indication the officer posted anything about the case to the wrong address.
- In any case, Mrs B says she has raised this with raise this with the Information Commissioner (“ICO”) and they cannot investigate as it is a limited company. As the ICO has already considered this matter I would not be able to investigate.
- I have not considered any questions about whether Company A needs to be part of a redress scheme. The Council has not taken enforcement action in respect of Company A and if it did, Mrs B would have a right of appeal to tribunal.
Investigator's decision on behalf of the Ombudsman