Islington Council (202206090)

REPORT

COMPLAINT 202206090

Islington Council

18 May 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

The resident complained about the landlord’s:
1. Decision to issue a notice to quit and notice seeking possession.
2. Handling of the associated complaint.

Background

The resident has been a secure tenant of a one bedroom second floor flat since 5 January 2012.

Legislation, policies, and procedures

The Pre-action Protocol for Possession Claims by Social Landlord’s states that before issuing a possession claim a social landlord should: –
1. “Write to the occupants explaining why it currently intends to seek possession and request that the occupant, within a specified time, notifies the landlord in writing of any personal circumstances or other matters which they wish to have considered. In appropriate cases, such a letter could accompany any notice to quit, or notice seeking possession and so would not necessarily delay the issue of proceedings”.
The tenancy agreement states: –
1. The resident must live in the property as his only or main home.
2. The resident must tell the landlord if he is going to be away from the property for more than one month and get the landlord’s permission to not live in the property for longer than three months.
3. In either case the resident must tell the landlord in writing:
  1. The date he intends to leave.
  2. The date he intends to return.
  3. The arrangements he has made for paying the rent and for looking after the property.
  4. The address and phone number where the landlord can contact him.
The landlord’s complaint policy which was applicable up until March 2022 states:
1. Stage one complaints should be acknowledged within three calendar days and a final response should be sent in 21 calendar days.
2. If a request for stage two (chief executive stage) is made, then a review of the stage one complaint must be conducted first.
3. Stage two (chief executive stage) complaints should be responded to within 28 calendar days of receiving the complaint.
The landlord’s complaint policy applicable from April 2022 states that both stages of complaints should be acknowledged within three working days. A stage one should be responded to within 10 working days and a stage two should be responded to within 20 working days.

Summary of events

On 15 January 2020 the resident sent a letter to the landlord. He advised that he would be away from the property from 8 February 2020 until 5 May 2020. He provided his contact details in Australia and details of who he had left the keys within case of an emergency.
On 5 April 2020 the resident sent an email to the landlord requesting permission to be absent from his flat for a period exceeding three months. He said that there were no flights available due to the Covid pandemic and he may not be able to return by 5 May 2020. He advised he would continue to try to return as soon as possible.
On 6 April 2020 the landlord responded and agreed that it was unavoidable under the circumstances. It agreed to update its records and confirmed that no action would be taken against his tenancy while he was unable to return to the UK.
On 17 September 2020 the landlord completed a desk top audit in respect of the tenancy. The audit showed five requests to be absent from the property from the resident dating back to 2018. The requests were for longer than one month but less than three months. It stated the last contact from the resident was an email informing it that he was unable to return to the UK during the pandemic. A case was opened to investigate as the audit stated the resident spent more time abroad than in the UK.
On 11 December 2020 the landlord emailed the resident. It said it had tried contacting him several times on the telephone, but it was not connecting. It advised it wanted to discuss his tenancy with him and asked the resident to contact within seven days or provide a number which it could contact him on.
On 12 December 2020 the resident responded. In summary he said:
1. His contact number had changed and provided a new number.
2. He was eleven hours ahead of London time and that would make it difficult for him to speak during business hours.
3. His situation was stressful, but he had been comforted by the landlord’s email of 6 April 2020.
4. In respect of returning to the flat all international travel was still banned and he would have to obtain a travel ban waiver through application to the Federal Government.
5. It was only last week that the first international flight had landed in Melbourne.
6. He was hopeful that flights would increase slowly but for now all he could do was guess and wait.
On 14 December 2020 the resident emailed the landlord and confirmed that he had received its voicemail message. In summary he said:
1. Given the time difference it was difficult to talk.
2. The number he had provided was his host’s phone as he could not afford a phone contract so he asked if it could contact him by email.
3. He was not financially prepared for the prolonged absence from the UK.
4. He was sleeping on a piece of foam rubber on his host’s enclosed balcony, rent free.
On 15 December 2020 the landlord emailed the resident to advise that it had called him that morning and left a message and that it would call again later that day. It explained it now had sight of his email outlining his current position and asked him to confirm the following: –
1. What his employment status was.
2. What airline was he due to fly back on 5 May 2020 and what was the flight number.
3. How many times had he been out of the UK over the last five years.
4. Confirmation of when he intended to return to the UK as its enquiries indicated there were flights from Australia to the UK on a frequent basis.
On 16 December 2020 the resident replied. In summary he said:
1. He had kept it appropriately informed and had fulfilled the conditions of the tenancy agreement.
2. In response to the questions, he said:
  1. The property was his only home. He did not own or rent another property in any country.
  2. All rents and charges had been paid.
  3. He had not sublet his flat or taken in lodgers.
  4. He had always notified it in writing of his absence from the property greater than one month but not exceeding three months duration.
  5. Permission was granted on 16 April 2020 for him to exceed three months due to the covid pandemic.
  6. He had not received any further communication to say permission had been withdrawn.
  7. He was unable to return to the UK due to restrictions that applied to dual nationals like himself. He was powerless to change those restrictions.
  8. He would return as soon as the government’s international travel ban enabled him to.
The resident sent a second email on the same day to a different officer who he had been in contact within April 2020. In summary he said:
1. He remained unable to return to the UK, but that situation was changing.
2. The first international flight to Melbourne since July landed on 7 December 2020.
3. He should be exempt from the international travel ban because he was “ordinarily resident” in the UK but because he was a dual national, he was not automatically exempt.
4. He would have to make an application to the Federal Government for a waiver, but he would not have proofs for his application, so he was seeking further advice on that. He said this information could be verified on the Australian Government Department of Home Affairs website.
On 16 December 2020 the landlord responded to the first email sent on 16 December 2020. In summary it said:
1. Given the information he had now provided in respect of his sleeping arrangements did he have another address as the contact address provided was the same as the one, he had given prior to covid.
2. It would be grateful if he could answer the questions, it had asked in full as this would assist it in making an informed decision about his intention to return to the property.
3. In the meantime, it would serve a notice seeking possession to protect its interests as its enquiries indicated that the UK was not his principal home.
On 17 December 2020 the landlord served notices to take possession of the resident’s property. A covering letter confirmed that action was being taken as it was alleged that the resident did not reside at the property as his only and principal home.
The covering letter asked the resident to let the landlord know within 14 days if there were any personal circumstances or other matters which he would like it to consider. It also requested details of how covid had affected the resident and to provide details of any vulnerabilities or disabilities.
The notice seeking possession had been modified by the Coronavirus Act 2020 and provided six months’ notice. It stated the resident had breached his tenancy on the basis that he did not reside at his property as his only and principle home. The notice to quit provided 28 days’ notice which expired on 18 January 2021.
On 18 December 2020 the resident emailed the landlord. In summary he said:
1. The property was where all his belongings were.
2. He was a tax resident in the UK and had paid all tax due.
3. But for the travel restrictions he was ordinarily resident in the UK as this was his principal home.
4. Absences of less than three months were permitted under his tenancy agreement and his current absence was permitted in the landlord’s email dated 6 April 2020.
5. The reason given to issue the notice, that “the UK is not your principal home” was not mentioned in the tenancy agreement.
6. Issuing a notice given the circumstance would be unfair as his absence was a consequence of the covid-19 pandemic.
7. He asked the landlord to reconsider and not issue a notice.
On 21 December 2020 the landlord responded. In summary it said:
1. In its email dated 6 April 2020 it had stated no action would be taken while he was unable to return to the country. Since that communication it had investigated his absence from the property and despite the current pandemic restrictions enquiries made indicated that the UK had not been his principal home for some time.
2. Housing was a scarce resource, and it had a duty to ensure that properties were occupied and were in full use to assist those in housing need awaiting homes. It could review its decision at any time if it had information that suggested he was in breach of his tenancy conditions.
3. Its enquiries revealed that he had not paid tax in the UK since 2017-2018. It asked the resident to provide any evidence he had that would contradict this and that it would be grateful if he could forward this as soon as possible together with responses to the questions already asked in its previous emails of 15 and 16 December 2020.
4. It attached copies of the notices served on 17 December 2020.
The resident responded to the landlord on 23 December 2020. In summary he said:
1. The notice seeking possession mentioned rent arrears as one ground and he was surprised as he did not believe he was in rent arrears.
2. He explained that he had addressed his tax obligations with HMRC and that he was due to lodge a tax return when his situation changed.
3. Since 2018 his income had been a scholarship which involved regular field trips to Australia.
4. He believed he had permission to be away from the property due to the international travel ban.
5. He did not have records with him but believed he had left the property three or four times for periods of less than one month and he always notified the authorities.
6. He understood the importance of prioritising social housing. He had experienced mental ill health and getting his secure tenancy had changed his life.
7. He wanted to get advice to consider his options and asked for patience.
The landlord responded on the same day stating that due to the impending Christmas holidays it was unable to give his email the full consideration it deserved. It confirmed that the notice was standard wording, and he did not have rent arrears. It confirmed that no action would be taken during the Christmas period, and it would respond fully after its services resumed on 5 January 2021.
On 31 December 2020 the resident sent an email to his local councillor asking for his assistance to stop the possession proceedings. He included the email correspondence with the landlord which confirmed he could stay longer in April 2020. He also attached a copy of his tenancy agreement and a personal statement about his circumstances which explained that it was because of his scholarship that he had to visit Australia. This email was forwarded to the landlord on 4 January 2021 by the councillor querying why it was evicting residents during the covid crisis.
Internal correspondence from the landlord showed a draft response to the councillor but it is not known whether this was sent. The draft response said:
1. As part of its investigation, it came to light that the resident was not living at the property. It was pursuing this as a matter of course. The notices had been served correctly and it recommended that the resident clearly answer the questions presented to him.
2. The resident had not provided further updates in respect of his absence despite stating he would return in May 2020 which was a breach of his tenancy agreement. The landlord had tried multiple times to contact him via phone at different hours of the day due to the time difference but had been unsuccessful.
3. In respect of evicting residents during covid it stated the matter had not gone to court, so any prospect would be some way off and determined by a court. Evictions were only taking place in particular circumstances, but it would pursue evictions if appropriate as it was important to recover empty properties so that housing could be provided to those on the waiting list.
On 6 January 2021 the resident emailed the landlord and advised that due to the sudden six-week lockdown his friend was unable to visit his property to secure material necessary for his defence. He asked if the landlord could delay the application to the court by six weeks from the current date of 18 January 2021. He also requested that if it was going to make an application could the claim form include the address he was residing at in Australia and that any claim forms be sent to him by email.
On 7 January 2020 the landlord responded to the resident and said he had raised several points in his emails dated 23 December 2020 and 6 January 2021 and that it was currently drafting a response. When it had collated the information, it would reply to him in full.
On 19 January 2021 the landlord emailed the resident and asked him to provide details of the institute that awarded him the scholarship. It confirmed that as stated in its email dated 7 January 2021 no further action would be taken until it had completed all its enquiries. If any action would be taken it would notify him by email.
On 20 January 2021 the resident responded and provided a letter from his supervisor dated 11 January 2021. The letter confirmed the resident’s scholarship and stated that the resident had been placed on sick leave and was undergoing treatment for mental health issues brought on by the stress of covid-19 and his current living situation in particular the threat of eviction from his home in the UK.
On 11 March 2021 the resident emailed the landlord. In summary he said:
1. It was now approaching three months since it had served a notice to quit. Its emails since said the matter was still under investigation and a decision to proceed with legal action had not yet been made. He considered the notice should have been served after the investigation not before.
2. He did not believe that he should lose his secure tenancy on the grounds he failed to update the landlord. His tenancy agreement did not ask him to provide updates but seek permission for an absence greater than three months which he sought and received. If that permission was conditional those conditions were not made clear.
3. He had received 12 letters during his absence from the landlord’s sub-contractors none of which asked him to update his intended return date. He was only given 48 hours before the notice to quit was issued.
4. It remained his intention to return home as soon as possible but it was his understanding that he no longer had a secure tenancy after the expiry of the notice. He would like a third-party mediator to assist to resolve the situation and restore his tenancy back to a secure tenancy.
The landlord responded to the resident’s email, but this Service is unable to see the full contents or the exact date as only part of the email has been provided. In summary it said:
1. A notice to quit or notice seeking possession can be served if it has sufficient information to suggest a breach of tenancy conditions. If further enquiries were made to clarify the information, it had obtained then it may not continue with its action.
2. In its email to the resident dated 23 December 2020 it confirmed the notice was standard wording and the resident did not have rent arrears.
3. It included information it obtained from the Australian Government website regarding leaving the country which stated “you are considered ordinarily resident in a country other than Australia if international movement records show that you have spent more time outside Australia than inside for the last 12 to 24 months. You do not need to carry paper record of your movements as officers at airports will check your movement records on the system”.
4. The grounds were not that he failed to update regarding his travel plans. It believed that the property was not his principal home as he has spent more time in Australia prior to the pandemic. It was clear from the rules outlined above that he was considered an Australian resident, and this was the reason which prevented him from returning to the UK.
5. The status of the tenancy no longer being secure would only be effective if it were to proceed with legal action.
The landlord asked the resident to provide further information, but this part of the email has not been supplied to this Service.
The resident responded on 23 March 2021 thanking the landlord for its comprehensive response. In summary he said.
1. His UK address was his only and principal home. He attached a letter from the owner of the property in Australia with a title deed confirming he did not own the property in Australia.
2. Because of his dual passport the Australian border force deemed him as ordinarily resident in Australia.
3. His scholarship was due to end in November 2021 but was subject to change because additional time would be added due to the covid pandemic and his own sick leave. The scholarship could be paused at any time so it could extend on that basis.
4. He was unable to confirm when he could return home due to further lockdowns and closure of airports. He attached a document to explain the difficulties he was facing to be able to return home.
5. He did react badly to the landlord’s initial enquiries because “in his arrogance he believed he was a model tenant and was appalled by the suggestion of fraud”.
The landlord responded on 26 March 2021. In summary it said:
1. It thanked the resident for attaching supporting documents advising of his current situation and responding in full to the questions it had asked.
2. Due to him not being able to return to the UK due to travel restrictions it would not take any further action in this matter. The notice to quit would not be actioned as he remained a secure tenant.
3. It asked the resident to inform it once he had a definite date to return to the UK so that it could update its records. Once he returned an interview would be arranged with him to confirm his return and residence in the property.
On 24 May 2021 the resident raised a formal stage one complaint. In summary he said:
1. He had been given permission to be absent from his flat in accordance with his tenancy agreement.
2. The notices were served prior to any investigation and should not have been served just 48 hours after it had contacted him.
3. He had endured four months of “hell” as he only received confirmation that no action would be taken on 20 April 2021.
4. The landlord’s actions had a demonstrable consequence on his finances, mental health, career, reputation, and his faith in his landlord’s commitment to the tenancy agreement.
5. He wanted a full written apology and compensation.
On 25 June 2021 the landlord sent a formal stage one complaint response. In summary it said:
1. A case was opened on 18 September 2020 following an audit which showed that the resident had spent more time in Australia than the UK.
2. While the caretaking agreements for the resident’s absence were in place there was no evidence to suggest that it had checked that the resident had returned throughout the period of the absences.
3. Email correspondence between itself and the resident in December 2020 showed that it had tried to contact the resident.
4. There was a delay in the resident providing a response to the questions posed and he was advised that to protect the landlord’s interest notices were served.
5. It was not its intention to cause any distress or to intimidate the resident and it was sorry that he felt that the action taken was unnecessary. It however considered it had acted appropriately considering the circumstances and the questions asked were reasonable and appropriate.
6. It was of the belief that he had sufficient opportunity to respond to its calls or provide a response to the questions raised.
7. It confirmed that it issued notice because of his failure to comply and provide a response to the questions raised.
8. It was sorry to hear that the situation had affected the resident financially but due to the issues outlined above it would not cover any costs incurred.
9. It did not uphold the complaint.
On 19 July 2021 the resident emailed the landlord stating that there was no just cause for serving the notices. In summary he asked:
1. Which questions put to him between 10 and 17 December 2020 went unanswered and how did those questions relate to his tenancy agreement.
2. How many days was he given to respond to any relevant unanswered questions before the notices were served on 17 December 2020.
On 2 August 2021 the landlord responded with a letter headed “stage one complaint review”. In summary it said: –
1. After several telephone call attempts on 10 and 11 December 2020 emails were sent on 11 and 15 December 2020 asking the relevant questions.
2. The resident responded on 16 December 2020 but did not answer questions one to four and question five was ambiguous. A response was sent on the same date asking the resident to answer the questions and he was also advised that to protect the landlord’s interest a notice would be served as it was not satisfied that the resident was occupying the property as his only and principal home and had reason to believe he was living in Australia.
3. The housing investigations team had the right to ask questions relating to the resident’s absence from the property, despite what prior arrangements had been made, if it suspected that the property was no longer the resident’s only and principal home which was the situation in this case.
4. The questions asked on 15 December 2020 were asked again on 16 December 2020 and the resident responded to both emails in detail but did not answer the questions directly put.
5. The notices were served on 17 December 2020 to protect the landlord’s interests, as the investigation had been open for three months and the housing investigations team still had reason to believe that the resident was not living at the property as his only and principal home. His failure to answer the questions was an added factor in that decision.
6. The complaint remained not upheld and had reached the end of the stage one complaints procedure. If the resident remained dissatisfied, he could ask for the complaint to be investigated at the chief executive stage of the complaint procedure.
On 1 September 2021 the resident emailed the landlord to ask for his complaint to be escalated to the chief executive stage (stage two). In summary he said:
1. The landlord was wrong to say that none of the five questions were answered. He attached a further copy of his original response to the questions.
2. It had not explained the relevance of the questions to his tenancy agreement. Information to be shared with his landlord was prescribed in his tenancy agreement.
3. It had not counted the days he was given to respond to the questions. It had failed to acknowledge that he was not given sufficient time to address the questions and there was no just cause for issuing the notices.
4. The landlord stated that a case was opened on 18 September 2020 but no attempt to contact him was made until 10 December 2020.
5. The stage one response stated there was a delay providing a response to all the questions and this was why he was served with a notice but in its stage one review it stated that this failure was an added factor in its decision to issue notices.
On 1 September 2021 the landlord acknowledged the request to escalate the complaint but stated it was unable to start an investigation as it had a high volume of requests. It said it would send a formal acknowledgment letter when it could start the investigation. It confirmed the same position again on 2 October 2021 and advised it would send a formal acknowledgement letter when the investigation began.
On 14 December 2021 the resident emailed the landlord for an update on his complaint. The landlord responded the next day and advised that it expected to start its investigation in three months. It apologised for the delay and confirmed it would address this with remedy in its response.
On 28 February 2022 the resident emailed the landlord again for an update. The landlord responded on the same day to confirm it had not started its investigation and it would send a formal acknowledgement once it had. It apologised for the delay and thanked the resident for his patience.
The resident responded on 1 March 2022 to query whether the investigation was due to start as he had been advised on 15 December 2021 that it would start in three months. The landlord responded on the same day and advised it expected to start the investigation on 28 March 2022. On 7 April 2022 the landlord sent the resident a formal acknowledgement of his complaint and confirmed that he would receive a full response within 28 days excluding bank holidays.
On 28 April 2022 the landlord emailed the resident asking him to confirm the exact date he travelled to Australia in 2020 and the exact date he returned to the UK. The resident responded the next day to confirm that he had left the UK on 7 February 2020, and he arrived in the UK on 9 April 2022.
On 29 April 2022 the landlord sent its chief executive stage two response. The complaint was not upheld. In summary it said:
1. It apologised for the delay in responding to the complaint and offered £75 compensation.
2. It was sorry to hear about his experience and feelings of discrimination as this was not intended.
3. The conditions of the tenancy stated the resident should notify the landlord of his absence of a period up to three months or more by completing a form prior to leaving the property. Residents were required to state the reason for travelling and to provide supporting evidence.
4. While the resident advised it of his absence it would have been good practice for it to have requested that he complete the relevant form and provide the supporting evidence. This could have avoided the actions taken as the required information would have been available. It apologised for the shortfall in its service.
5. It completes audits on 10% if its housing stock by visiting properties unannounced each year but due to the pandemic this was not possible, so it completed desk top audits.
6. It was noted that the resident had made five applications between 19 May 2018 and 5 May 2020 to be away from the property without providing the required supporting documents. This was one reason that prompted further investigation. The investigation had no bearing on his nationality. This procedure applied to all residents to ensure that no unauthorised occupation took place.
7. The resident responded to the email of 15 December 2020, but his answers were not directly in response to the questions asked. When asked what his employment status was the resident responded, “all rents and charges have been promptly paid”. When asked what airline he was due to fly back on 5 May 2020 he replied, “I have not sublet my flat or taken in lodgers”.
8. As the answers were incomplete it was correct in the actions taken. It had the right to ask questions pertaining to a resident’s absence if there was reason to suspect the resident to have a main home elsewhere.
9. The notices were issued two days after the resident’s response, and this was because of the indirect responses in addition to the information on record showing he had spent more time in Australia than in the UK since 2018.
10. It acknowledged that the resident hadn’t been contacted until December 2020, but this was because as part of the investigation process some background checks would be carried out before any contact was made.
11. It had a duty to protect its interest, and this is why it served the notices. The notice is the first step to instigate legal action and may not necessarily continue which was what happened in this case.
12. It empathised with his situation considering the timing was at the peak of the global pandemic. However, this could have been minimised if he had provided clear answers to the questions asked, whether they pertained to the tenancy or not. The tenancy conditions required him to provide supporting evidence when he notified of his absence which he failed to do.
The resident remained dissatisfied with the response and on 25 June 2022 he referred it to this Service to investigate.

Assessment and findings

In his complaint to the landlord and this Service, the resident stated that his mental health was affected by the landlord’s actions. The Ombudsman has not sought to determine whether this was the case as this is a matter which is best decided by a court following a claim of injury or damages. However, this investigation has considered how the landlord responded to the resident’s concerns about the impact on his health in line with the Ombudsman’s approach, which is set out at the start of this report.
The landlord had reason to investigate whether the resident was occupying his property as its records indicated that the resident had been absent for about six months each year since 2018.
The resident had correctly requested permission in April 2020 to be absent from his property in accordance with his tenancy agreement. It was the landlord’s responsibility to ensure that it captured the relevant information it required to satisfy itself of the reason for the absences.
It would have been reasonable for the landlord to have asked the resident to complete the relevant form at the point of the request to extend his absence, which it acknowledged would have provided answers and evidence to its questions, and would have avoided the actions taken. The landlord could have warned the resident first that notices were likely to be served if it was unable to establish a comprehensive response to the questions on first contact.
While it is unknown why the resident did not initially answer the questions in full, it would have been appropriate for the resident to have been given the opportunity to understand the relevance of the questions. He had already provided the information required under the terms of the tenancy agreement and had not been asked these types of questions when he was absent from the property in the past.
The issue of the notice in December 2020 clearly caused concern for the resident. It was unreasonable that the landlord served the notice just before the Christmas period when it knew that it would not be able to respond to any questions raised by the resident, and that the matter was significant and likely to cause concern and distress.
The landlord asked on 17 December 2020 for personal circumstances that he would like it to consider to be submitted within 14 days (including vulnerabilities). In response, the resident provided a letter on 20 January 2021 that stated he had been placed on sick leave and was undergoing treatment for his mental health. While this information was outside of the 14 days, it was still relevant and it would have been reasonable for the landlord to have considered this in accordance with the pre-action protocol for possession proceedings. That the landlord did not acknowledge the information provided by the resident, which set out the significant impact of the situation on him, was inappropriate.
While it was appropriate that the landlord advised the resident on 7 January 2021 that all legal action was on hold pending further investigation, the landlord did not notify the resident that the notice would be withdrawn until 26 March 2021. It is unknown why the landlord’s investigation took a further two months. No evidence to support what investigations the landlord made, aside from some clarifying questions to the resident, and why this took two months has been provided to this Service. The time taken is therefore found to be unreasonable.
The landlord’s explanation for withdrawing the notice was that it was satisfied with the information the resident had provided and that it was now able to understand how the travel restrictions were impacting the resident’s return.
Given the seriousness of the allegation and the resident’s expressed concern about the notices it would have been reasonable for the landlord to have completed its investigation promptly without undue delay or at the very least have provided the resident with timescales that it would expect to complete such an investigation.
The landlord was made aware that the resident was severely impacted in January 2021 as he had provided evidence that he was unable to work and was receiving treatment for his mental health, but there was no confirmation that action would be withdrawn until 26 March 2021. The impact of this delay on the resident has been considered in the order and the compensation award below.
In summary there was maladministration in the landlord’s decision to issue a notice to quit and notice seeking possession. The resident had provided the information in accordance with his tenancy agreement. It would have been appropriate for the requirement for the additional proof to have been requested by the landlord at the point he was requesting the absence. As acknowledged by the landlord, this would have avoided the need to issue notices. This would also have managed the resident’s own expectations as to what information he was expected to provide for such absences. While the landlord did acknowledge its failure to gather all correct information at the right time, it failed to acknowledge the impact of this on the resident.
It was therefore unreasonable for the landlord to issue the notice just a few days after it had contacted the resident. While this Service appreciates the landlord’s duty to protect its stock and manage non-occupancy an initial warning letter would have been a fair and reasonable approach in these circumstances. This would have given the resident reasonable time to understand why this information was required and what action would be taken should this information not be provided. The landlord then caused further distress and inconvenience by delaying its investigation without evidencing any good reason to do so.

Complaint handling

This Service was not provided with any evidence to show that the landlord acknowledged the resident’s stage one complaint. The landlord’s stage one complaint response was provided 27 calendar days after the stage one was submitted. This is not in accordance with its complaint policy that was in place at the time which stipulates it should respond within 21 calendar days.
When the resident asked for his complaint to be escalated to a stage two complaint the landlord opened a “stage one complaint review”. While this was in accordance with its policy at that time, the policy was not compliant with the Ombudsman Complaint Handling Code (the Code) which states that a landlord should only have a two-stage procedure in place to ensure that the process is not “unduly long”.
The landlord has now updated its procedure and removed the stage one review from its policy. However, this protracted complaint procedure caused the resident further time and trouble in pursuing the complaint.
The landlord correctly acknowledged the resident’s stage two complaint within three days which is in accordance with its policy. It informed the resident that there were delays due to high volumes of requests and then updated the resident with the same information one month later.
It then failed to update the resident for two months before providing a timescale of a further three months for it to respond. The resident then had to chase the matter several times after the three month period had passed before receiving the complaint response. This was a failing in the landlord’s complaint handling as it did not do what it said it would which caused the resident additional time, trouble, and inconvenience.
There were significant delays in the landlord providing its stage two response. It took almost six months from the resident’s initial request for the landlord to escalate his complaint. This was unreasonable and not in accordance with its own complaint policy or the Code and caused inconvenience to the resident.
Within its final complaint response, the landlord acknowledged the delay and offered £75 compensation. The landlord’s compensation guidance states that where there is a delay an offer of £25 per month should be considered for delays beyond the “service statutory period”. The landlord’s complaints policy sets a target of 20 working days (excluding bank holidays) to respond to a complaint at stage two. From receipt of the resident’s complaint until it provided a response on 29 April 2022 a total of 164 working days elapsed. A period of almost six months outside its published timescale.
The landlord did not set out its basis for compensation in its complaint response, and there is no evidence to demonstrate that the landlord acted reasonably in deciding to offer £75 for the extensive delay, and not £25 per month in line with its guidance.
It is noted that the landlord also offered £75 compensation in other complaints considered around this time, where there were delays in providing a stage two response, and that this sum was offered for different periods of delay. This indicates that rather than giving due consideration to its compensation guidance and the individual circumstances of the complaint, the landlord may have fettered its discretion and applied a set level of compensation for delays at stage two. An order relevant to this matter has been made by the Ombudsman in another case considered, and a further order has been made in this report.
The landlord’s complaint responses were also confusing. In its stage one response it stated that the notices were issued because of the resident’s failure to answer its questions fully. In its stage one review and stage two response it shifted its position and stated that the failure to answer the questions was an additional factor, but the main reason was that it believed the resident had spent more time in Australia than the UK.
This shift indicates that either it was not sure of the basis on which it issued the notice or that it had not appropriately investigated the events leading to the complaint at either stage.
In its stage two response the landlord stated that the conditions of the tenancy required the resident to complete a form which was incorrect as the tenancy conditions provided to this Service do not stipulate that a form is required. This would have caused further frustration and confusion for the resident particularly as he had provided the information required under the terms of the tenancy agreement.
The landlord identified in its stage two response that it should have asked the resident to provide the reasons and supporting evidence for his absence at the point he made the request to be absent. It did not however consider its own compensation policy in respect of this failing, which was inappropriate given the circumstances of the case. This has been considered in the order and compensation award below.
In summary there was maladministration in the landlord’s handling of the complaint. There were lengthy delays which caused the resident inconvenience, time, and trouble. The compensation offered was not in accordance with its compensation guidance, and not reasonable in the circumstances of the case given the adverse effect caused to the resident. The landlord shifted its position in the final stages without any explanation. It failed to correctly explain the terms of its tenancy agreement which caused confusion to the resident as evidenced by his responses. The landlord also failed to consider its compensation policy when it identified that its own failing could have prevented the need to serve notices.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s decision to issue a notice to quit and notice seeking possession.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Reasons

The landlord has a duty to protect its stock and manage non-occupancy, but an initial warning letter would have been a fair and reasonable approach where the landlord has failed to request the relevant information from the resident earlier. This would have given the resident a set period to understand why this information was required and what action would be taken should this information not be provided. The distress and inconvenience was then extended further by the fact that the landlord showed no good reason as to why the investigation took a further two months to conclude.
There were unreasonable delays in the landlord’s complaint handling. It failed to respond in the timeframes set out in its policy. The complaint responses shifted position and failed to correctly explain the terms of the tenancy which was confusing. The landlord failed to acknowledge the distress, time and trouble experienced by the resident and the amount of compensation offered did not fully put it right for the resident.

Orders

Within four weeks of the date of this decision the landlord should:
1. Apologise to the resident for the failings identified in this case.
2. Pay the resident a total of £475 compensation, comprising:
  1. £200 for the distress and inconvenience caused by the landlord’s decision to issue notices.
  2. £275 for the distress and inconvenience, and time and trouble caused by its handling of the complaint.
1. The landlord’s offer of £75 compensation should be deducted from the above total, if already paid.
2. Provide confirmation to this Service that this payment has been made.
Within the next six weeks, considering the failings in this case, the landlord should review its approach to:
1. What factors it should consider before issuing notices.
2. Keeping residents updated where there are delays in complaint responses.
3. The time taken to respond to complaints at stage two.
4. How it assesses what evidence is needed to fully consider a complaint.
5. Compensation offered for distress, inconvenience, delays and time and trouble.
The landlord should share the outcome of the above review with this Service also within six weeks. This review should as a minimum include:
1. Any planned changes to its approach, including any staff training, which will reduce the likelihood of similar failings happening again.
2. Any changes already made in its approach, including any staff training which has taken place, which will reduce (or has reduced) the likelihood of similar failings happening again.