Summary: Mr X complained about the actions of the Council and its contractors when they investigated allegations of harassment made by his partner’s tenant. He is also dissatisfied with the way the Council investigated his complaints. We found the Council was at fault and this caused injustice to Mr X. The Council has agreed to provide a suitable remedy.

The complaint

1. Mr X complained that the Council’s contractor harassed him and his partner, Ms Z, when it investigated allegations made by one of Ms Z’s tenants. He says the Council should not have referred the tenant’s allegations to its contractor.
2. He also complained that the Council made a false and damaging statement about him in its reply to his Stage One complaint. The Council’s contractor also wrongly informed Ms Z that her tenant could apply for a Rent Repayment Order because the property was unlicensed.
3. Mr X is not satisfied with the Council’s decision to partially uphold his complaint at the final stage of its complaints procedure. He says the apology it gave then is not an adequate remedy. He wants the Council to retract the allegations, pay compensation and ensure officers and contractors are held accountable for their actions.

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What I have investigated

4. I have investigated the matters raised in the three complaints Mr X made to the Council in May and June 2020.
5. I did not investigate earlier events from 2019 for the reasons given in paragraphs 40 and 41.

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The Ombudsman’s role and powers

6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
8. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
9. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
10. 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)
11. In May 2020 we issued guidance to councils and care providers on good administrative practice during the response to COVID-19. This included principles about handling complaints during the pandemic. We acknowledged that councils’ resources would be stretched, staff may be redeployed and this could cause delays in complaint-handling. But we said we expected councils to continue investigating complaints, keep complainants informed, explain the reasons for any delay and the likely timescale for a response.

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How I considered this complaint

12. I have considered all the information Mr X sent me. This includes the three complaints he made to the Council in May and June 2020 and the Council’s replies at both stages of its complaints procedure.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

14. Mr X made this complaint for himself, and also on behalf of his partner, Ms Z. Ms Z is a landlord who lets accommodation in the borough. Mr X says he has acted as Ms Z’s advocate since 2019. She gave written consent for him to make this complaint on her behalf.

What should happen

15. The Council operates a selective licensing scheme for private rented accommodation in most wards in the borough. Landlords who let properties in these areas must apply for a licence for any house or self-contained flat occupied by a single household or no more than two unrelated persons. A new selective licensing scheme was introduced on 1 May 2020. This replaced the previous borough-wide scheme which ended on 31 March 2020. Landlords were given a grace period from May to the end of October 2020 to make new licence applications.
16. The Housing and Planning Act 2016 gives councils powers to issue a Civil Penalty notice, or to prosecute, landlords who fail to apply for a mandatory selective licence. They may also apply to the First Tier Tribunal for a Rent Repayment Order when a landlord has committed an offence.
17. Private tenants may complain to their local council about harassment or illegal eviction by their landlord. Councils have powers under the Protection from Eviction Act 1977 to investigate tenants’ complaints of harassment and illegal eviction, and they may prosecute a landlord where he or she has committed an offence.
18. Waltham Forest Council has a contract with an external organisation to provide a tenancy relations service. Council officers refer complaints from tenants about alleged harassment or illegal eviction to the contractor for investigation. The contractor aims to protect tenants who are victimised by landlords by providing specialist advice, advocacy and support. The Council is responsible for actions taken on its behalf by the contractor’s staff.
19. The Council has a two stage complaints procedure. At the first stage, a response is sent within 20 working days of receiving the complaint. At the second stage, the Corporate Complaints team responds within 25 working days.

What happened

20. The Council had previously investigated claims of harassment and illegal eviction made by tenants of two of Ms Z’s properties. This happened before the events of this complaint.
21. In April 2020 one of these tenants, whom I shall call Mr A, contacted the Council’s Private Sector Housing & Licensing (PSHL) team to complain that he could not get access to the rear garden of the property following building alterations by the landlord.
22. The duty officer referred this matter to its contractor in late April.
23. On 31 May 2020 Mr X made his first complaint to the Council. He complained that an officer in the Council’s PSHL team had telephoned to ask about Mr A’s lack of access to the garden. On the following day, one of the contractor’s employees called him. Mr X said she threatened to take legal action on behalf of Mr A.
24. Mr X said Mr A had no right to enter the other tenant’s flat to gain access to the back garden. He said the other tenant was not willing to give permission for him to do so. There was also a public health risk if Mr A entered the other tenant’s property during the COVID-19 pandemic. Mr X said that by referring the matter to its contractor, the Council had shown it was biased in favour of the tenant, Mr A. He said the Council should not use the Covid-19 pandemic as an excuse not to send a timely response to his complaints. He said he would not accept an insincere apology.
25. On 3 June 2020 Mr X made a second complaint. He said one of the contractor’s employees had made unreasonable demands for Ms Z to pay money to Mr A. He regarded that as harassment. This complaint was prompted by a letter the case officer had sent to Ms Z in late May 2020. In the letter she said the tenant, Mr A, could apply to the First Tier Tribunal for a Rent Repayment Order for £1,600, equivalent to two months’ rent, because the licence on the property had expired in late March. Mr X sent evidence with his complaint that the Council’s PSHL team had already confirmed to Ms Z that the timescale for landlords to renew licences had been extended. Applications could be made between May and October 2020.
26. Mr X made a third complaint on 11 June. He complained about the conduct of the case officer and a “culture of nastiness” in the organisation. He said this had caused Ms Z stress while she was recovering from an operation. He also raised concerns about the conduct of the contractor’s staff in First Tier Tribunal proceedings for a Rent Repayment Order in 2019. He claimed the case officer had lied when giving evidence and tried to mislead the Tribunal. The Tribunal made its decision in August 2019. Mr A was not involved in that case.
27. A manager in the PSHL team did not reply to Mr X’s complaints until 18 September 2020. She apologised for the delay but did not give any reasons. She did not uphold the first and third complaints.
28. In her letter, under the heading “Findings”, the manager said the records held by the Council and its contractor showed they had intervened several times in the past when there were incidents of harassment by Mr X or Ms Z at two properties which involved several tenants.
29. The manager partially upheld Mr X’s second complaint. She found that the contractor’s case officer did not know there was a gap between the old and new licensing schemes, and that landlords had a grace period to make licence applications, when she contacted Ms Z in late May. She only partially upheld that complaint because she said there had been no “direct fault” by the Council. She observed that the incorrect information had been given by the contractor - a partner organisation - and not by Council officers.
30. Mr X was not satisfied with this decision. He asked the Council to consider his complaint at the second stage of its complaints procedure. He complained about the long delay in replying to his Stage One complaints. He also said the decision to refer Mr A’s case to the contractor was irrational and an abuse of power. He said the manager’s statement that he was a perpetrator of harassment against tenants at one of Ms Z’s properties was untrue. He considered the statement was a deliberate smear which he found offensive and distressing. He said the Council had condoned the actions of its contractor and its acts and omissions.
31. The Council completed the Stage Two investigation on 20 November 2020. The investigating officer accepted there had been undue delay at Stage One and no holding letter had been sent. She said this was partly due to the COVID-19 pandemic and the Head of Service mistakenly believing that a response was sent while she was on leave.
32. The investigating officer found no fault with the decision to refer Mr A’s complaint to the contractor. She explained the Council had a contract with the organisation to provide a tenancy relations service and advice to tenants. The Council followed the correct procedure when it made the referral.
33. She said it could be inferred from the wording in the Stage One decision letter that Mr X had been prosecuted for harassing tenants. She said the letter could have been clearer in that regard. She also noted the Stage One reply found the contractor made an error in the letter sent to Ms Z when it said the property was unlicensed. She apologised for any upset this had caused Mr X or Ms Z.

My analysis

34. It was not fault for the Council tor refer Mr A’s concerns about the loss of access to the garden to its contractors. This was a tenancy relations matter involving potential interference with a tenant’s rights. And the Council has statutory powers to investigate this or refer it to its contractors for investigation.
35. The delay in responding to Mr X’s Stage One complaint was fault. Although the complaints were made during the COVID-19 pandemic, and Mr X made three complaints in quick succession, that does not excuse the delay. Mr X should have received a response sooner and the Council should have kept him informed about the reasons for the delay. Mr X clearly found the delay, and the lack of communication, frustrating.
36. The Council’s contractors were at fault when they informed Ms Z that Mr A could apply for a Rent Repayment Order because the property was unlicensed. She was still in the grace period at the time for making a new licence application. In the Stage One reply, the Council tried to distance itself on the grounds that the error was made by a member of the contractor’s staff rather than a Council officer. But that was wrong. The Council is liable for any errors made by its contractors and it should have accepted full responsibility for this fault.
37. The Stage One reply stated, in unambiguous terms, that Mr X had been prosecuted for harassing tenants. I do not share the Stage Two investigating officer’s view that this could be inferred from reading the letter; it was stated in plain terms. Mr X believes this was a deliberate attempt to smear him. But we cannot establish if there was any malicious intent and it could have been a genuine drafting error. In terms of the injustice to Mr X, I have taken into account that the letter was private correspondence between him and the Council. Despite Mr X’s concerns that the letter could be made public, I have seen no evidence that this happened. It had a very limited circulation within the Council and it was not shared with the contractors. For this reason, although I understand Mr X was very upset and distressed to read it, I consider it is unlikely to have caused him any reputational damage. I do not consider the injustice to Mr X and Ms Z is significant enough to merit a financial remedy.

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Agreed action

38. Within one month of this final decision, the Council will:
• make an unreserved apology in writing to Mr X and Ms Z for the distress and frustration caused by the faults identified in this statement;
• remind officers who investigate complaints that the Council is responsible for any errors or omissions by contractors who carry out functions on its behalf;
• put the Ombudsman’s final decision statement on the complaint record and circulate it to any officers who received the Stage One and Stage Two decision letters.

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Final decision

39. I have completed the investigation and found the Council was at fault and this caused injustice to Mr X and Ms Z.

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Parts of the complaint that I did not investigate

40. Mr X referred to some historic events and the Council’s response to his previous complaints. This includes an alleged data protection breach, an issue relating to Council Tax, and action the Council took in 2019 when they prosecuted Ms Z for offences relating to a property occupied by a different tenant. I did not investigate these events because they happened more than 12 months before Mr X complained to us.
41. I did not investigate the complaint that the contractor’s employees lied and tried to mislead the First Tier Tribunal in 2019. This part of the complaint is late because these events happened more than 12 months before Mr X complained to us. Moreover, we would not usually investigate a complaint about evidence Council officers or contractors give to an independent statutory tribunal. It is for the tribunal to assess and test the evidence and decide what weight to give it.

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Investigator's decision on behalf of the Ombudsman