Eastbourne Borough Council (202003830)

REPORT

COMPLAINT 202003830

Eastbourne Borough Council

14 May 2021

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 refers to:
1. The landlord’s handling of your transfer from your previous property.
2. Information provided by the landlord at the beginning of your tenancy.
3. The landlord’s complaint handling of these matters.
4. The landlord’s offer of compensation for errors it identified in its complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39 (m) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

Complaints a and b

Paragraph 39 (m) of the Housing Ombudsman 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.”
Complaints about the handling and assessment of applications to local authorities for housing, including assessments of suitability of properties (such as affordability), the information provided about the local authority’s allocations policy and priority or incentives awarded to residents who are down-sizing to a smaller property, fall more properly within the jurisdiction of the Local Government and Social Care Ombudsman.
Complaints a. and b. defined above are therefore not within the Ombudsman’s authority to determine in accordance with paragraph 39 (m) of the Housing Ombudsman Scheme and will not form part of this investigation. This investigation focuses on the landlord’s handling of the formal complaint, and the level of redress offered in relation to the failures it identified in its handling of that complaint.

Background and summary of events

The resident is the tenant of a property owned and managed by the landlord, who is also the local authority. For the purposes of this report, I have referred to the housing department as ‘the landlord’, and other departments as ‘the local authority’.

Landlord’s complaints procedure

The landlord’s complaints procedure has two stages.
Complaints at both stages should be acknowledged within five days of receipt. The acknowledgement should include the name of the staff member assigned to respond and a target date for the landlord’s response to the complaint. Stage one complaints should be responded to within ten working days of the complaint, and stage two complaints within 20 working days, unless there are “special circumstances”.
Complaint responses should include:
1. “A clear statement about whether or not your complaint has been upheld,
2. An explanation of the circumstances leading to the issue (if appropriate),
3. An explanation of the action which has been taken/is being taken to ensure the same thing does not happen again (if appropriate),
4. The offer of a remedy (if appropriate),”
5. And either:
  1. “Details about how to make a stage 2 complaint if you disagree with the response” at stage one, or
  2. “Details about how to make a stage 3 complaint to the Local Government Ombudsman or the Housing Ombudsman if you disagree with the response” at stage two.
The procedure goes on to say that the landlord cannot usually investigate a complaint if the resident has “left it more than 12 months since knowing about the problem”.

Landlord’s compensation policy

The landlord has provided its repairs compensation policy. While this is not specifically relevant to this case, it includes information on how it calculates compensation payments for distress, and time and trouble incurred:
1. “A remedy payment for distress is often a moderate sum of between £10 and £100. In cases where the distress was severe or prolonged, the advice of [a senior member of staff] must be sought. …
2. “Time and trouble: Generally related to when there has been fault in the way we have considered a complaint, i.e. incorrect refusal, delay, etc. If warranted this is unlikely to be less than £100 or more than £300, such claims must be approved by [a senior member of staff].”
The policy goes on to say: “In general compensation awards should be offset against money owed to [the landlord]. This is not limited to that owed to the service making the award. Before awarding the payment a check will be made if the complainant has rent or service charge arrears. If so, compensation should be used to offset any debts.”
It is also noted that the landlord’s compensation policy refers directly to the Housing Ombudsman’s dispute resolution principles:
1. Be fair
2. Put things right
3. Learn from outcomes

‘Social’ and ‘Affordable’ rents

Most rented social housing properties are let at ‘social rent’. Social rents are set using a government formula based on the relative value of the property, the size of the property and relative local income levels. In 2011, the government introduced ‘affordable rent’ which permits rents to be set at up to 80% of market rent.

Summary of events

The resident was the tenant of a three-bedroomed house (“property A”) owned and managed by the landlord, let at a ‘social rent’. The tenancy began in 1991. By October 2015, the resident was under-occupying the property and incurring deductions from her Housing Benefit (HB) payments under a scheme known informally as the ‘bedroom tax’.
The resident applied to move to a more suitably sized property. A two-bedroomed flat (“property B”) was allocated. The property was let at an ‘affordable rent’. Prior to letting, the resident queried that the rent was higher than the property she was then living in. The landlord explained that the resident would be financially better off after the move as there would no longer be deductions from her HB due to under-occupancy.
The resident took up the tenancy of property B on 26 October 2015. The tenancy agreement did not include the rental price, although the local authority HB department wrote to the resident on 4 January 2016 enclosing an explanation of how her HB payments had been calculated, which included the full rental cost of the property. Subsequently, the resident’s benefit circumstances changed, causing a reduction in HB payments from March 2016 and an eventual stop to HB payments that November leaving the resident responsible for the full rental amount.

Formal complaint

The resident complained to the landlord in writing on 8 August 2017, following up by telephone on 10 August. She complained that the landlord had assured her that the rent charged would be lower at property B than the rent at property A, but that several weeks after moving she had discovered that the rent was higher.
The landlord acknowledged the complaint on 24 August 2017, naming the officer responsible for responding and committing to visit to discuss the matter. It visited on 8 September; the resident repeated the complaint, but the landlord did not respond formally.
On 16 October 2017, the resident asked the landlord to escalate the complaint to stage two, repeating her complaint and expressing dissatisfaction that the landlord had not yet responded to the complaint.
The landlord met with the resident on 31 October 2017 during which the resident repeated her complaint. On 12 December, the resident contacted the landlord repeating the complaint and complaining that the matter remained unresolved, specifically asking again for the complaint to be escalated to stage two.
There is evidence that the landlord contacted the complainant in January 2018, but an appointment to discuss the complaint was cancelled by the complainant due to ill health and rearranged for 8 February. The landlord arranged to re-house the resident to a property let on a ‘social rent’ as a result.
The landlord’s records show that on 10 April 2018 it spoke to the resident that day and noted that the resident was satisfied with the outcome of the complaint. However, the resident’s representative wrote to the landlord on 3 May repeating the complaint and chasing a response. After a delay, the landlord responded on 26 June noting that the complaint had yet to be closed and that it had asked its officers to discuss this with the resident. The landlord visited the resident again on 27 June but still did not close the complaint.
The resident’s representative wrote to the landlord again on 2 July 2018 raising concerns about the completeness of the documents provided and asked for more details. The representative wrote to the landlord again on 23 January 2019 chasing it for a response to the formal complaint which remained outstanding.
The landlord responded to the complaint on 18 February 2019 at stage two of its complaints procedure. It upheld the complaint for the following reasons:
1. It failed to provide a formal response at stage one or acknowledge the stage two complaint, which it committed to review to prevent such failures in future.
2. It said it had recorded the resident was satisfied with the outcome of the complaint on 10 April 2018 but acknowledged that it should have confirmed this formally in writing.
3. It said that while it was formally responding, it would not consider the complaint resolved until the resident had been rehoused.
4. It advised the resident of her right to approach the Ombudsman.

Subsequent events

The resident’s representative wrote to the landlord on 5 April 2019 noting that the resident was satisfied that the complaint had been upheld but requesting a specific amount of financial redress.
A member of landlord staff noted there had been no response and chased colleagues for this on 29 April 2019, and the resident chased for a response on 2 May. The landlord acknowledged this on 9 May and said it would respond to her representative. The representative chased the landlord on 17 June.
The landlord responded to the representative on 24 June 2019 asking how the amount of redress requested had been calculated. There is no evidence that the representative or the resident directly responded to this.
The resident accepted the tenancy of a two-bedroomed house (“property C”) let on a ‘social rent’ on 19 August 2019.
Between June 2019 and February 2020, the resident regularly asked the landlord for an update in the matter of financial redress. In August 2019, the landlord confirmed the matter was being considered by its Accounts team, and on 17 December 2019 – after several further emails from the resident – the landlord advised that the Accounts team, along with its Legal department, were considering the matter and would provide a response.
On 8 January 2020, the landlord committed to respond to the resident by 13 January but did not. The resident continued to chase the landlord for a response throughout January. On 5 February, the landlord committed to respond by email early the following week (week commencing 10 February). Internal email correspondence between landlord staff show that it was considering options for redress at this point.
The landlord wrote to the resident’s representative on 14 February 2020. As well as redress in relation for the subject matter of the complaint, it offered £500 compensation in relation to the time taken to respond to the original complaint.
The resident emailed the landlord the same day saying she was dissatisfied with the response, asking for an appointment to discuss the matter further. At this point the landlord suggested she contact the Ombudsman as the matter had exhausted its internal complaints procedure.
On 23 July 2020 internal correspondence between landlord staff shows that it was in the process of paying a £500 ‘goodwill gesture’ to the resident’s rent account. The resident confirms that £500 was paid into her rent account, although remarks that this was done without her accepting the offer.

Complaint to the Ombudsman

The resident contacted the Ombudsman on 30 July 2020, complaining that the level of redress offered by the landlord was inadequate in relation to the amount of distress and financial loss incurred.

Assessment and findings

Complaint handling

More than 12 months elapsed between the matter arising and the resident’s formal complaint. The landlord would have been acting in accordance with its own complaints procedure to refuse to investigate. However, in this case the landlord reasonably chose to exercise its discretion and investigate the resident’s complaint, which is to its credit.
However, it failed to follow its complaints policy and procedure on several occasions throughout the complaint. It:
1. did not acknowledge the complaint within five days,
2. the acknowledgement did not give a target date,
3. failed to issue a formal stage one response,
4. failed to acknowledge the resident’s stage two complaint
5. delayed unreasonably in providing a formal response at stage two
The landlord recognised some of the above failures in its investigation and response but failed to consider any financial redress at the time, which would have been reasonable given the time which elapsed before it responded to the complaint.
The landlord’s records reveal that it identified further failings, including inadequate IT systems, inadequate complaint handling procedures, archived or unreadable emails, and poor record keeping. It would have been appropriate, and in accordance with the Ombudsman’s dispute resolution principles, to have informed the resident of the outcome of its investigation and the steps it intended to take to prevent such actions recurring in future.
The landlord delayed unreasonably in providing a considered response to the resident’s compensation request, despite several chasers.
This investigation concurs that some of the landlord’s record keeping is poor. Among the evidence provided by the landlord were undated notes, incorrectly dated notes, and undated emails. Such issues can prevent the landlord from being able to investigate complaints adequately

Offer of redress

The landlord’s offer of £500 in relation to the time taken to respond to the complaint was more than the amounts described in its compensation policy, which was reasonable given the level of service failure it had identified in its handling of the complaint. It is also within the range of the compensation orders the Ombudsman normally considers when making findings of considerable service failure or maladministration, including significant failures to follow complaints procedures or escalate complaints appropriately. The landlord’s offer was therefore fair and reasonable in the circumstances.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, the landlord was responsible for service failure in its complaint handling.
In accordance with 55 (b) of the Housing Ombudsman Scheme, the landlord’s offer of compensation for errors it identified in its complaint handling resolves the complaint satisfactorily.

Reasons

The landlord missed the initial opportunity to provide redress for failures identified in its complaint handling, failed to adequately demonstrate learning from the failures it identified, and delayed unreasonably in responding to the resident’s request for financial redress.
The level of compensation offered for the complaints handling failures it had identified was in excess of its compensation policy and in the range of orders made by the Ombudsman for similar failures.

Orders and recommendations

Within the next four weeks the landlord is ordered to:
1. Pay the resident a further £100 in compensation for the complaints handling failures it failed to identify in its responses to the complaint.
2. Write to the Ombudsman and the resident confirming the outcome of its investigation into its complaints handling and setting out the actions it has taken or will take in future to prevent such failures from recurring. The landlord may find it useful to refer to the Housing Ombudsman’s Complaint Handling Code when complying with this order.