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North Tyneside Council (202214593)

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REPORT

COMPLAINT 202214593

North Tyneside Council

01 September 2023

 

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1.     The complaint is about the landlord’s handling of the resident’s personal belongings following her eviction.

Background

2.     The resident had an assured tenancy with her landlord, a local authority, for nine years. The landlord has no disabilities or vulnerabilities recorded for the resident however the resident has said that her mental health issues have been exacerbated by the landlord’s actions.

3.     The resident was served a notice of eviction on 3 February 2022 and was told she must make arrangements to collect her belongings by 3 March 2022. However, unbeknown to the resident the landlord emptied the property on 7 February 2022 and disposed of the vast majority of the resident’s belongings as it deemed them to be ‘contaminated’.

4.     On 21 February 2022 the resident collected one black bag of belongings which had been held by the landlord in a storage unit. The resident and her family subsequently made multiple unsuccessful attempts to contact the landlord to try and find out what had happened to all her other possessions. These included personal items that belonged to her late daughter, including her death certificate.

5.     The resident submitted a stage 1 complaint on 26 April 2022 regarding the landlord’s actions and the impact on her mental wellbeing. In response the landlord said that when the property was emptied most of her items were deemed to be contaminated and were immediately disposed of “as per the section 41 Policy”.

6.     The resident escalated her complaint to stage 2 on 17 May 2022. She said the landlord had not adhered to the 28 days for collection of goods and she profoundly denied that her goods were contaminated. She requested that the landlord provide evidence of the alleged contamination. She could not understand why some items had been returned and others deemed to be contaminated and destroyed. The resident and her daughter were also both concerned that their personal property had been “scoured through”.

7.     The landlord’s stage 2 response advised that its actions were in accordance with “S41 Local Government (Miscellaneous Provisions) Act 1982” and that when it attended the property there was an awful smell. It said it was not required to hold details on the type of contamination and, “If we are storing or disposing of goods following an eviction with the customer not present, I do not know how we can avoid personal and sentimental items being included in this process”.

8.     The resident asked to escalate her complaint to stage 3 of the landlord’s internal complaints process. She disputed information that had been provided by the landlord at stage 2 and said that she was no further forward in understanding what the contamination was. She explained that the matter was extremely distressing to the whole family, and that she was worried there had been a mix up with another resident’s property and belongings. In its response the landlord advised that it was satisfied the complaint had been fully investigated and that it would not be escalating it to stage 3.

9.     The resident approached this service for assistance on 6 October 2022. She explained that not knowing what had happened to her possessions had caused emotional, financial, and practical distress. Items she had lost included her late daughter’s possessions and death certificate which had a particularly devastating impact on her and her daughter. Other possessions included laptops, educational certificates, white goods, jewellery, bedding and clothes. As an outcome, the resident is seeking £10,000 compensation from the landlord.  

Assessment and findings

10. When considering complaints, the Ombudsman applies its Dispute Resolution Principles, which are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution: Be fair – treat people fairly and follow fair processes; Put things right; Learn from outcomes.

11. The landlord’s “Housing and Property Services Section 41 Procedure” says that 28 days’ notice is required to be given in writing to the owner of the property, requiring collection by a specified date.

12. The Procedure also says that there should be two Neighbourhood Housing Officers in attendance at an eviction or to gain entry following the expiry of a Notice to Quit, and that if there are belongings left in the property the Neighbourhood Housing Officer will complete a full inventory of all goods left, including furniture, electricals, white goods, clothing, linen and personal items regardless of their condition.

13. The Procedure advises that if the decision is taken to dispose of items, a record should be kept of the items and photographs and wherever possible this should be discussed with the former tenant. If there is a forwarding address or email address for the former tenant, they should be advised to contact the Voids Team to arrange collection of their goods before the expiry date or they will be disposed of.

14. The Procedure also states that under exemption S41(7), if anything is deemed to be contaminated or storing items will cause the authority unreasonable expense or inconvenience then they will not be stored and a record of such items will be kept by the landlord.

15. The resident was instructed by the landlord to make arrangements to collect her possessions before 3 March 2022 (28 days notice). The landlord however cleared the property on 7 February 2022, just four days after it had served notice and without informing the resident. No evidence has been provided to demonstrate that records were kept of the resident’s individual items that were disposed of, there was no “full inventory of all goods left…..regardless of their condition”,  “if anything is deemed to be contaminated… then they will not be stored and a record of such items will be kept by the landlord”.

16. There is no evidence to suggest that the landlord attempted to make any contact with the resident regarding the clearance and disposal of her belongings prior to this taking place, or that a neighbourhood housing officer was consulted. The landlord’s approach was inappropriate and unacceptable. The landlord acted in a heavy-handed manner and its actions have caused the resident considerable emotional distress as well as impacting her financially and practically.

17.  On 7 April 2022 the landlord noted that the resident had submitted a complaint along with an inventory of goods, a timeline of attempted contact with the landlord and a statement. This information does not appear to have been provided to this service, however in summary the resident’s stage 1 complaint advised that:

  1. the resident had been given 28 days to claim her belongings as advised in the notice seeking possession, and as discussed by the landlord with the resident’s family on 14 February 2022
  2. on 17 February 2022 the landlord advised the resident that her belongings could be recovered from a storage unit but when she attended on21 February, she was given just one black bag which included several items of clothes, an empty jewellery box and five family photographs – all of which had been damaged
  3. the resident and her family had been given no information as to where the rest of her belongings were, of if they were recoverable, and had made multiple unsuccessful attempts to contact the landlord for information
  4. items that had been lost included clothing and bedding, as well as more expensive items such as laptops, and certificates needed for education and employment. The resident was having to rely on goods borrowed from family, which was causing financial strain
  5. all the resident’s late daughter’s goods were lost, including her death certificate, which had a devastating impact and had re-opened the grief. The situation had caused emotional, financial, and practical distress
  6. the resident requested compensation of £10,000, alongside a formal apology from the landlord.

18. On 10 May 2022 the landlord responded to the resident’s stage 1 complaint. It confirmed that the property had been emptied on 7 February 2022 and that most of the items were deemed to be contaminated and had been disposed of immediately with the exception of a few sentimental, personal and confidential items that had been handed over. It said it was normal procedure to keep items for 28 days after the eviction but as they were considered to be contaminated, they were disposed of as per the Section 41 policy. The landlord has not provided any further explanation to explain its decision that the resident’s items were contaminated or what the smell was that it referred to. No mention has been made of what the contamination may have been or why it required the resident’s possessions, including paperwork and jewellery, to be destroyed. It has advised that it is not reasonable for it to hold such supporting information. The landlord’s lack of explanation was unacceptable and has caused the resident considerable upset, frustration and distress.    

19. With regards to the resident’s difficulties contacting the landlord, it advised that the officer was on leave from 4 February 2022 to 14 February 2022 and that the officer had contacted the resident upon her return. The difficulty that the resident experienced attempting to contact the landlord at such a challenging time added to her frustration and distress. The landlord should ensure that officers have out of office messages on their voicemails and emails so that residents are signposted to alternative points of contact. The challenges and delays the resident experienced trying to speak to the landlord to discuss her possessions added to her distress.  

20. The landlord advised the resident that if she felt it was liable or negligent regarding this matter it had insurance which she had the right to pursue.  This was appropriate advice and provides the resident with an option to pursue a claim with regards to financial loss that she has incurred. 

21. On 17 May 2022 the resident escalated her complaint to stage 2. She reiterated that the 28 days collection period had not been adhered to, disputed that goods were contaminated and requested evidence (photographs and health and safety logs) of the contamination. She added that further distress had been caused by the landlord’s stage 1 response which had confirmed her goods were destroyed, and that this weighed heavily due to the personal value of some of the items. The resident and her family were also concerned that their personal property had been “scoured through” when the landlord was determining what few items should be returned and what should be disposed of. The resident felt that it was a personal insult that all her possessions were deemed to be contaminated, and no apology had been offered by the landlord who had destroyed her possessions without good reason.

22. The landlord responded on 24 June 2022 and reiterated its process was “in accordance with “S.41 Local Government (Miscellaneous Provisions) Act 1982” which “gives special powers to local authorities to dispose of property. This includes where property comes into its possession after being found on buildings or premises owned or managed by them. Property must be stored for one month if the tenant’s whereabouts is known.” This service understands that the landlord did have contact details for the resident or her family member and multiple attempts to contact the landlord were made by the resident. The landlord should have contacted the resident prior to disposing of her possessions. The stage 2 response is likely therefore to have caused confusion to the resident and added to her stress, frustration and distress as well as the time and trouble spent following up.

23. Also relevant to the landlord’s actions is the “Torts (Interference with Goods) Act 1977”. This Act permits landlords to dispose of goods left behind as long as the correct policies and procedures are followed. The Act requires landlords to make reasonable arrangements to contact the tenant so that their goods can be returned to them. Schedule 1 Part I of the Act imposes an obligation on the owner of goods to collect them, and Part II notifies an owner of the intention to sell the goods if they are not collected by a certain date. In this case, there is no indication that the landlord intended to or did sell the items, and the Act does not specify any action that should be taken where a landlord simply disposes of belongings. In light of this it is good practice for a landlord to ensure it has taken all reasonable and proportionate action to show that it has attempted to contact the owner of the items before disposing of them. In the resident’s case there is no evidence that the landlord gave her notice of its plan to clear the property or dispose of her goods which was unacceptable.

24. The importance of attempting to identify the owner of items is clear in both the landlord’s policy and the Act. The landlord did not act in accordance with its policy which was especially important given that the landlord seemingly had no plans to store items so that they could be recovered, and instead immediately disposed of them. This has caused significant distress for the resident, which the landlord has not addressed. This service considers that the landlord treated the resident unfairly and has not followed fair processes. It failed to put things right for the resident and there is no evidence that it has learnt from the outcomes of this complaint.

25. In its stage 2 response the landlord said, “it is self- evident that the items in the property were disposed of well within the said 28 days however if the goods are perishable or have little value, or it would involve unreasonable expense or inconvenience to look after adequately, then the council can dispose of them. Furthermore, nothing should be stored if it is in an unhygienic condition or there is evidence of infestation”. This response was insensitive and heavy handed when considering that some of the personal items disposed of belonged to the resident’s late daughter, which the landlord was aware of. References to infestation and items being in an unhygienic condition were unsubstantiated as was the reference to there having been a bad smell. The landlord’s response was inappropriate and unsympathetic and did not support its statement made in its stage 1 response that it understood the emotional, financial and practical distress that losing personal belongings had caused.  

26. In its stage 2 response the landlord said the resident had advised its service manager that she [the resident] had not been back to the property in the last 12 months. The landlord said this “raises a question as to how [the resident] would know about the contamination”. The landlord also queried why the resident had not removed items prior to the property being repossessed due to significant rent arrears. It also said that any new inventory produced by the resident after the eviction had no legal bearing and could not be substantiated. It continued to query how the resident could detail such an inventory if she had not been in the property for the last 12 months. The landlord’s approach demonstrated a lack of ownership or accountability on its part. It questioned the resident’s behaviour rather than the actions that it [the landlord] had taken. This was unacceptable especially considering the resident’s situation, the landlord’s lack of evidence regarding its actions, and the resident’s vulnerabilities.  No evidence was provided to this service by the landlord to evidence that the resident had not been living at the property. She was fully aware that she had 28 days to remove items and there was no expectation that she should have moved them earlier. The resident herself advised that a neighbour would be able to confirm she was at the property until she was evicted. The landlord’s approach was accusatory and not substantiated by any evidence. This would have caused the resident further distress.

27. The landlord advised that it had retained what it could but that, “we are not privy to what [the resident] determines is personal or sentimental items”. It is for this reason that the landlord should have given the resident the opportunity to clear her property. It is reasonable to expect too that paperwork such as certificates and jewellery should be considered as personal or sentimental items. The landlord’s response was therefore unclear and unreasonable.

28. The landlord’s complaints policy advises that stage 3 is at the discretion of the senior complaints officer and that where complaints are upheld, identifying any consequent injustice to the complainant and to authorise appropriate redress, including financial redress up to a maximum of £10,000.

29. In its stage 2 response the landlord advised, “you can ask, within 10 working days of this letter, that the matter be examined further under Stage 3 of the Council’s complaints procedure. This may involve consideration by a committee of 3-5 councillors, to which you would be invited to attend.”

30. On 14 July 2022 the resident requested that her complaint was escalated to stage 3 and advised:

  1. she had not been provided with the landlord’s inventory to review and she disputed that there was any contamination
  2. she requested the landlord provide photographs to evidence the contamination and location of items
  3. the landlord had referred to there being an “awful smell” and “items determined as contaminated”. She queried why some items had therefore been returned and others destroyed, and that a bad smell would have meant all belongings were contaminated
  4. she had not been made aware that items had been destroyed and were considered to be contaminated until she received the stage 1 response
  5. the landlord had not responded to her concerns about items having been “scoured through”
  6. she was worried there had been a “mix up” with another resident and that this had resulted in her goods being destroyed.

31. The landlord replied and said it was satisfied the complaint had been fully investigated at stages 1 and 2 and that: “As I have been unable to identify any fault, I do not consider that further consideration by the Regulation and Review Committee would produce a demonstrably different outcome, therefore, I have taken the decision not to progress your complaint to Committee”. The response was generic, and no clear reason was provided to explain why the complaint would not be escalated, other than the landlord considering that no fault had been found which the resident disagreed with. Aspects of the resident’s complaint had not been adequately responded to throughout the complaints process. This service is concerned therefore that the resident was treated unfairly and that the decision not to review at stage 3 was inappropriate. The stage 2 response had implied the resident could escalate her complaint, “if you would like to do this”, and there was no mention that this was at the landlord’s discretion. This was misleading, did not manage the resident’s expectations and does not demonstrate a customer focussed culture. The resident has confirmed with this service that she had “really wanted” to attend a review meeting. The landlord should learn from this and ensure that its processes, policies, and communications with residents are fair, transparent and clearly communicated.

32. The landlord appears to have found no fault in how it handled the resident’s complaint which has had a significant and detrimental impact on her. Its refusal to escalate her complaint to stage 3 was inappropriate and was a missed opportunity to identify any failings and “put things right” to the extent that they could be put right. It was also a missed opportunity to identify any learnings from the resident’s complaint and prevent similar issues occurring going forward.

33. This service considers that there has been severe maladministration in the landlord’s handling of the resident’s personal belongings following her eviction. As such, orders are made below for remedy. It is important to note that, while the Ombudsman can order a landlord to pay compensation as reimbursement of actual costs (for example if a resident has incurred travel costs that can be evidenced, or an item whose value can be evidenced has been damaged) in this case there is limited evidence available. It is not the role of the Ombudsman to determine the value of the items disposed of, and this is something that would be better pursued via an insurance claim.

34. However, an order of compensation is made in recognition of the fact that there would have been some financial loss to the resident, as well as distress and upset caused. The amount ordered takes into account the resident’s individual circumstances and the additional upset and distress that the landlord’s failings have caused. The amount ordered is in accordance with the Ombudsman’s remedies guidance.

35. An order is also made regarding the provision of information on making an insurance claim, should the resident wish to pursue this course of action.

Determination

36. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was severe maladministration in the landlord’s handling of the resident’s personal belongings following her eviction.

Orders and Recommendations

37.  Within six weeks of the date of this determination, the landlord should:

  1. apologise in writing to the resident for the failings identified in this investigation
  2. pay the resident a total of £4000 for the significant distress and time and trouble caused by its handling of her personal belongings
  3. contact the resident to discuss the insurance process, and clearly explain the next steps she needs to take to progress with an insurance claim should she chose to do so
  4. share this case and its findings with relevant staff and operatives to help ensure that similar failings do not occur going forward
  5. the landlord is required to confirm compliance with the above actions within six weeks of this investigation report.

Recommendation

38. The landlord should ensure that its stage 2 responses clearly outline that escalation to stage 3 is at the landlord’s discretion and, when a complaint is not escalated to stage 3, ensure detailed information is provided to the resident regarding its reasonings.