Connexus Homes Limited (202007836)

REPORT

COMPLAINT 202007836

Connexus Homes Limited

24 August 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 is about the landlord’s handling of the resident’s tenancy sign-up.

Background and summary of events

Background

The resident had an assured shorthold ‘starter tenancy’ with the landlord. The tenancy started on 26 November 2019 and ended on 29 January 2020. During this period, the resident did not move into the flat and rent arrears of around £1100.00 were accrued by the resident.
The resident’s advocate has brought the complaint to the Ombudsman and she has said that the key issue is about the resident’s ability to understand the tenancy she had signed. She has said that the landlord failed to carry out any assessment of the resident’s mental capacity prior to offering her the tenancy. As a result of this, and the resident’s lack of mental capacity to understand the tenancy, the advocate has said that the tenancy should be declared void and the rent arrears written off.

Summary of events

On 22 August 2019 the landlord arranged for the resident, her mother, and her advocate to view the flat. The landlord has said that it was not made aware of any concerns regarding the resident’s capacity to understand the responsibilities of taking on a tenancy.
On 29 August 2019 a ‘Professionals’ meeting was held to discuss the resident’s move from her supported accommodation to the new flat. In attendance at this meeting were the local authority’s Adult Social Care team, the resident’s mother, and also her advocate. It was agreed that the landlord would hold the flat for the resident until a care package was put in place by the Adult Social Care team.
Once the care package was put in place by the Adult Social Care team there was further correspondence between the parties about the move. The landlord has said that it was not made aware of any specific concerns about the resident’s ability to sign for a tenancy.
The tenancy sign-up appointment was held on 26 November 2019. In attendance were the resident, a member of the Adult Social Care team and the resident’s support officer from her current accommodation. The landlord has said that the resident’s mother and her advocate were also invited but they did not attend. The landlord’s Housing Officer has said that she left the room to allow the resident to speak to her support team in private and it was only after this that the resident then signed for the tenancy.
Following the sign-up meeting, the landlord then arranged with the resident and her mother for furniture to be purchased for the new flat by the landlord and for this to be delivered to the flat. This was done with the involvement and agreement of the resident and her mother.
On 19 December 2019 the landlord contacted the resident’s support team as it was concerned that she had not yet moved into the flat. At this point advice was given about how to end the tenancy if the resident did not wish to move in. This was reiterated again in January 2020 as was the implications on the Housing Benefit payments. The landlord was advised by Social Services that a further ‘Professionals’ meeting was to be held.
This meeting took place on 15 January 2020 and was inconclusive as to the resident’s intention to move into the flat. The landlord left a termination of tenancy form with the resident’s support team. At this point discussions took place between the resident’s advocate and the other parties as to the resident’s capability of moving from her supported accommodation to the new flat.
On 28 January 2020 the landlord received a completed Notice to Quit (termination of tenancy form) signed by the resident, sent on her behalf by Social Services. On 29 January 2020 the tenancy was terminated.
On 11 February 2020 the resident’s advocate logged a formal complaint with the landlord. She said that the resident had learning difficulties and mental health issues, and as such, the landlord should have carried out a ‘capacity assessment’ before offering her the tenancy as she did not have the required mental capacity to understand what she was signing for. She asked that the rent arrears and the council tax debt to be written off so as not to adversely impact any future housing application.
On 17 Apr 2020 the landlord issued its Stage 1 complaint response:
1. It apologised for the delay in responding and said this was due to COVID 19.
2. It said it had liaised with all the involved parties and it provided a chronology of events.
3. It maintained that it was never made aware of any issues regarding the resident’s mental capacity to sign for a tenancy until January 2020. It was involved in two ‘Professionals’ meetings and this was not discussed and all the agencies involved appear to have assumed she was ready to move out of supported accommodation.
4. The landlord concluded it worked in good faith with the resident and her support team and whilst the resident may have changed her mind about moving into the flat, it was never brought to its attention that she may have lacked the mental capacity to accept a tenancy.
5. It confirmed that it was not negligent in not carrying out a capacity assessment prior to the sign-up meeting and it relied upon the social services team to raise any such concerns.
6. It maintained that the tenancy was valid and the rent costs accrued during the duration of her tenancy were still owed.
The landlord issued its Stage 2 final complaint response on 30 July 2020:
1. It said that during the complaint investigation it found no evidence that it had been made aware prior to the tenancy sign-up that there were any concerns about the resident’s lack of capacity to understand or accept the tenancy.
2. Furthermore, its staff were not qualified to make a mental capacity assessment and were therefore reliant on expert qualified advice from the key professionals responsible for the resident’s care and support. It did not have the in-house expertise to assess her mental capacity and it had fulfilled its role in providing a housing solution which all parties representing the resident supported. It cannot accept liability for carrying out a mental capacity assessment it says it is legally unable to make and is unqualified to do.
3. It therefore did not uphold the complaint and it said that tenancy was valid and the rent arrears accrued during the duration of the tenancy were still owed.
The Ombudsman understands that whilst the rent arrears are still owed, the account is presently ‘dormant’ and no further action has been taken to formally pursue the arrears.

Assessment and findings

Looking at the facts of this case, the key issue raised by the resident’s advocate is that the resident lacked the required mental capacity to understand and sign for a tenancy, and as such, the landlord ought to have carried out its own capacity assessment before offering the resident a tenancy. By failing to do so, and by virtue of the fact that the resident lacked the mental capacity to sign for the tenancy, it should be voided and the rent arrears written off.
It should be noted that the Ombudsman is not able to determine whether or not an individual had the required level of mental capacity at the time of entering into a contractual agreement (the tenancy). Any such determination is likely to require an understanding of the individual’s state of mind and any such assessment would require specialist medical knowledge and expertise – which the Ombudsman is not qualified to provide.
Similarly, the resident’s advocate is suggesting that the rent arrears should be written off as the tenancy agreement is not legally valid (on the grounds that the resident did not have the mental capacity to understand what she was signing for). The advocate is essentially questioning the legal validity of the tenancy agreement signed by the resident. The Ombudsman considers that such disputes would be better suited for a court of law, where appropriately qualified legal experts can determine whether or not a valid contract has been established.
Therefore, this report will only address the landlord’s handling of the tenancy sign-up itself.

The landlord’s handling of the resident’s tenancy sign-up

The landlord has said that it was aware that the resident was vulnerable (as she had been referred to it by the local authority social care team) and that she had learning difficulties. But it was not made aware of any specific concerns about the resident’s mental health or any conditions associated with this.
The landlord does not have any specific policies or procedures that govern how a tenancy sign-up is conducted.
The available evidence shows that the resident was not acting alone at any stage of the process prior to, and including, the sign-up meeting. She was assisted throughout the process by her mother, her advocate and also members of the local authority social care team. There is no evidence to show that resident’s support team raised any concerns with the landlord prior to the sign-up meeting about the resident’s ability to understand how a tenancy works and/or the implications of her accepting a tenancy.
The landlord was not required to carry out any type of mental capacity assessment of the resident, and it was not made aware of any such concerns that would have required it to consider this. In addition, the landlord is not qualified or equipped to carry out such assessments.
The resident viewed the property in August 2019 with her mother and advocate in attendance. There is no evidence to show that the landlord was made aware at this point about any issues to do with the resident’s ability to take on a tenancy. A meeting was then convened with all the professionals involved in the resident’s care and support and no issues were flagged at this meeting about the need to do any assessment of the resident’s mental capacity. The landlord was in attendance at this meeting and it was reasonable for it to rely upon the information provided by the experts responsible for the resident’s care and support. The outcome of this meeting resulted in the landlord agreeing to wait for the resident to finalise her support arrangements before accepting the tenancy.
The correspondence seen by the Ombudsman between the parties shows that the landlord made enquires with the resident’s support team and was given reassurance that the resident was ready and willing to move into the flat. The nature of the correspondence shows that there were discussions between the parties about the resident’s support arrangements for when she moves into the flat, but there is nothing to suggest that the landlord needed to carry out any additional checks or assessments itself. It was appropriate for the landlord to be guided by the information provided by the resident’s support team who were duly qualified and responsible for the resident’s care.
The resident’s advocate has said that the resident was ‘bamboozled’ by the landlord into signing the tenancy. The landlord has made enquiries with the staff responsible for the sign-up meeting and there is nothing in the evidence to suggest that the landlord acted inappropriately at this meeting. The resident was assisted at the meeting by her support team and it would appear she was given the time and space to make her decision in conjunction with the advice and guidance of her support team. The landlord cannot be held responsible for the advice and guidance given to the resident by her support team and the landlord acted reasonably by allowing them to speak with the resident away from the landlord.
In terms of the landlord’s involvement, there is nothing to suggest that it had any conversation with the resident on her own, and nor is there any evidence of any undue pressure being put on the resident by the landlord to make a decision on the tenancy.
Once it had been brought to the landlord’s attention that the resident had concerns about moving into the flat, it acted appropriately by liaising with her support team and flagging its concerns about the impact on the housing benefit payments and the rent arrears. It also provided advice on how to terminate the tenancy. The landlord acted reasonably by swiftly actioning the formal request to end the tenancy. It also put a pause on the recovery action in respect of the rent arrears, which was reasonable.
Having considered the matter in full, there is an underlying issue about the involvement of the local authority social services team in this case, and whether or not the responsibility for carrying out a capacity assessment should rest with social services (and not the landlord). Any complaints about the delivery of adult social care services are more suitable for the Local Government and Social Care Ombudsman (‘LGSCO’). As such, if the resident wishes to pursue this aspect of the complaint, she will therefore need to contact the LGSCO directly.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s tenancy sign-up.

Reasons

The landlord was not obligated to carry out an assessment or make a decision on the resident’s mental capacity as part of the tenancy sign-up. The available evidence shows that its handling of the tenancy sign-up was appropriate and it acted reasonably in relying upon the actions and expert guidance of the resident’s support team. It made changes to its sign-up process by allowing the resident and her team more time to consider the tenancy and it ensured that the decision made by the resident to accept the tenancy was done with the full knowledge and co-operation of her support team.