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Cornwall Council (202122560)

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REPORT

COMPLAINT 202122560

Cornwall Council

 30 June 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:
    1. the resident’s concern that the age of his neighbours is a breach of their tenancy agreement;
    2. the resident’s associated complaint.

Jurisdiction

  1. 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.
  1. After carefully considering all the evidence, this Service cannot investigate issues concerning the landlord’s application of its housing allocations policy. This is in accordance with paragraph 42k of the Housing Ombudsman Scheme, which states that the Ombudsman will not consider matters that “fall properly within the jurisdiction of another Ombudsman”. The application of the landlord’s housing allocations policy falls under the jurisdiction of the Local Government and Social Care Ombudsman. This Service can investigate issues concerning terms and conditions of occupancy rights and a council’s handling of complaints about its function as a social landlord.

Background

  1. The resident is an assured tenant of a bungalow owned by the landlord. The property is part of a neighbourhood of accessible accommodation primarily for older people.
  2. In September 2019, the landlord responded to an enquiry from the resident about potentially swapping his home. The landlord stated that any potential tenant for the resident’s home would need to meet certain criteria. They would need to either be of pension credit age (66 or older) or be able to evidence mobility issues through the receipt of certain disability benefits. In October 2020, the landlord re-confirmed this information to the resident.
  3. On 18 February 2021, the resident emailed the landlord about neighbours who had recently moved into a property near to the resident. The resident had concerns that some of the members of the household did not meet the age requirement for the property. The resident had concerns that his neighbours were also trying to hide that they had converted their living room into a bedroom. The landlord responded to the resident on 24 February 2021 thanking him for sharing his concerns. It said due to data protection legislation, it would not be able to update the resident with information about any action it may take as a result of his email.
  4. On 30 March 2021, the landlord emailed the resident about another issue he had raised, but it also re-confirmed the criteria for tenants of the properties on the resident’s street. The resident replied stating that the landlord had told him that tenants must be over 50 years of age or receiving certain disability benefits for mobility issues. He raised concerns that the tenancies being issued in the street were “corrupt” and being altered without consultation to allow for younger people to live in the neighbourhood. The landlord responded to the resident on 31 March 2021 stating that the ages of the resident’s neighbours were less of a concern, but it would follow up with the neighbours to see if any potential overcrowding is temporary.
  5. On 27 June 2021, the resident emailed the landlord to make a formal complaint. He stated he believed that his neighbourhood had always been for people aged over 50 years or in receipt of certain benefits and this had been clearly stated when he enquired about swapping his home. He said he did not believe the tenancies stated that two couples could live in the same residence. He said he believed that the landlord was changing the terms of its tenancies without warning or consultation and that all tenancies had been standardised in 2017.
  6. On 7 October 2021, the resident filled out a complaint form to the landlord about the same concerns. He stated he made a complaint over 12 weeks ago but had no response. He stated two household members of a neighbouring property did not meet the criteria to live there. On 26 October 2021, the resident made a further complaint stating that the landlord was ignoring his original complaint. The resident made contact with this Service on 11 January 2022, which this Service then followed up with the landlord.
  7. On 15 February 2022, the landlord issued its stage one complaint response. It confirmed it had spoken with the resident on multiple occasions about the issue in question. It attached the resident’s tenancy agreement and said it made no mention of an age restriction. It confirmed that current requirements for the main tenant in the resident’s neighbourhood are that they must be of pension credit age (over 66 years old) or have a mobility issue. It stated that tenancies that started prior to this current policy were not required to be terminated. It also said that tenants may have younger family members or guests staying with them of any age. It stated it could not share specifics about the particular neighbour the resident was complaining about but assured the resident that there was not a breach of tenancy. The landlord also stated that the resident’s original email of 18 February 2021 had been treated as a service request, not a complaint. It said that the resident had been contacted at the time and it had also responded to other complaints he had raised. The resident’s complaints about his neighbours and about the lack of response to his complaint were not upheld.
  8. On 21 February 2022, the resident requested that his complaint be escalated to stage two of the landlord’s complaints process. The landlord acknowledged the resident’s request on 1 March 2022 and confirmed it would communicate a date for a tenant appeal panel once one had been agreed.
  9. On 14 October 2022, the landlord issued its stage two complaint response following a tenant panel review. It did not uphold the resident’s complaint about tenancy agreements being breached in his neighbourhood. It had investigated ages and circumstances of the residents of the street and confirmed that all tenants were entitled to live there. These tenants were also entitled to have visitors of any age. The resident’s complaint about the delays to the landlord’s handling of his complaint were upheld. It stated that the resident’s original communication had been classed as a report, not a complaint. But it did acknowledge a significant delay with issuing the stage two complaint response. It offered £25 compensation to remedy this and also sent a formal apology letter to the resident on 17 October 2022.
  10. The resident asked this Service to investigate his complaint. He said he had been told by the landlord that the neighbourhood was for people aged over 50 when he moved in. He said that the landlord also told him he was not allowed to have his children live with him in his bungalow. He wants the landlord to disallow any more children from living in the neighbourhood.

Assessment and findings

The landlord’s handling of the resident’s concern that the age of his neighbours is a breach of their tenancy agreement

  1. This Service is aware that some of the resident’s concerns can only be directly addressed by giving him personal information about his neighbours. The landlord has been correct to not disclose personal information about the resident’s neighbours without their knowledge and consent. This Service is also not able to include any personal information about third parties in this investigation report. This is in line with data protection regulations.
  2. The tenancy agreement sets out the terms of occupancy and the rights and obligations of those party to the agreement, i.e., the tenants and the landlord. This Service has seen a copy of the resident’s tenancy agreement and finds that the landlord was correct when it confirmed that the tenancy agreement makes no mention of any age requirement for the property. Therefore, it is not clear what tenancy terms the landlord would have changed when offering the resident’s neighbours a tenancy. The allocation scheme criteria are different to tenancy requirements. Allocation schemes can also be flexible, and the landlord is legally entitled to set and vary its own allocation scheme to meet local and changing needs.
  3. The resident has concerns that he would be misrepresenting the nature of the neighbourhood to any prospective tenants he discusses a potential home swap with. He feels that he would be unable to honestly describe the scheme as one for older people as there are also younger people living there. The resident felt this concern was not addressed by the landlord in its complaint responses.
  4. It is this Service’s opinion that the resident can be honest with any prospective tenants he may swap homes with. The landlord’s position is clear. Anybody who signs a tenancy agreement for a property on this scheme must meet certain criteria. They must either be over the age of 66 years old or have mobility difficulties evidenced by their receipt of particular benefits. However, there is no age restriction on the tenant’s household members or any guests they may have, Therefore, the resident would not be able to give rise to the expectation that the scheme will only have people aged 50 or over living in it. This Service cannot find any evidence of the landlord telling the resident that the age requirement for all residents in the neighbourhood is 50 years of age. It can find evidence of the resident being advised that the age requirement for tenants is 66 years of age, although persons of any age may live with or be guests of tenants.
  5. The resident stated in his email of 18 February 2021 that one of his new neighbours is retired. It is likely the case that this individual has signed the tenancy agreement and met the criteria for the property as set by the allocation scheme. If this neighbour has moved in family members who are younger than him, the landlord has stated that this does not violate its allocation scheme, its tenancy agreements or its policies. Concerns about overcrowding are different, and this Service is satisfied that the landlord has correctly handled the information from the resident and investigated the concerns he raised about overcrowding, although it could not share details of its investigation with the resident due to data protection rules.
  6. In the event that a person under the age of 66 signed a tenancy agreement for this particular scheme, the landlord would not necessarily have acted unlawfully or unreasonably. The landlord has the right and the legal basis to make the best use of its own housing stock. The only parties to each tenancy agreement are the landlord and the tenant. Neighbours are not parties to any tenancy agreements other than their own.
  7. There is no evidence of any maladministration with the landlord’s handling of the resident’s concerns. While this Service does not doubt the resident’s word, it has not seen any evidence that the resident has been told by the landlord that all residents must be over 50 years of age or that his grandchildren cannot live with him. It has seen evidence of the landlord confirming on multiple occasions the allocation criteria and its policy on younger household members or guests. The landlord responded appropriately to communication from the resident highlighting his concerns. It has protected the neighbours’ privacy while taking steps to reassure the resident that a breach of tenancy agreement has not taken place.

The landlord’s handling of the resident’s associated complaint

  1. When a resident contacts a landlord about an issue, it is important that the landlord recognises the difference between a resident making a service request and making a complaint. The Ombudsman’s complaint handling code states that a service request is “a request from a resident to their landlord requiring action to be taken to put something right”. It also states that “a complaint should be raised when the resident expresses dissatisfaction with the response to their service request”. A formal complaint does not need to include the word ‘complaint’ in order to be treated as one.
  2. The resident’s email of 18 February 2021 was correctly treated as a service request, as it was the first time the landlord had been informed of the resident’s particular concerns regarding his neighbours. The landlord thanked the resident for the information, informed him it would not be able to update him on any actions it took, and investigated the concerns. This was an appropriate response. However, the resident emailed again on 27 June 2021 very clearly making a formal complaint. This was not an initial request for a service, it was an expression of dissatisfaction with the service provided by the landlord. At this point, the landlord should have started its formal complaint response in accordance with its complaints policy.
  3. The landlord’s complaints policy states that it aims to resolve complaints at stage one within 10 working days and complaints at stage two within 20 working days. It states that where it cannot resolve complaints within these timescales, it will extend response times for good reasons only and keep the resident informed.
  4. The landlord’s stage one complaint response issued on 15 February 2022 did not acknowledge the resident’s email of 27 June 2021 and instead stated that the resident’s original contact about the matter came in “October”. It is not clear if the landlord meant the last October in 2021 or if the year has been accidentally missed out and it meant October 2020. It stated that the resident’s contact had been treated as a service request and had been responded to.
  5. In line with the landlord’s complaint policy, the resident should have received a stage one response by 9 July 2021. The response came over seven months later than when it was originally due. Despite further communication in October 2021 from the resident about the fact that his complaint had been ignored, it took intervention from the Ombudsman in January 2022 to trigger the formal complaints process. The resident’s feeling that his complaint had been ignored is understandable. The stage one response did not uphold the resident’s complaint about the lack of communication or response. The landlord has provided this Service with the resident’s email of 27 June 2021, yet had failed to respond appropriately to it and failed to acknowledge this.
  6. The stage two complaint response should have been issued by 21 March 2022, unless the landlord had communicated good reason for an extension to the resident in advance. When the landlord issued its stage two complaint response on 14 October 2022, it became clear that the first time the panel met was on 6 October 2022. This Service has not seen any evidence that the landlord kept the resident informed about the reasons for a second significant delay with handling his complaint. Following on from the unacknowledged seven-month delay to the stage one response, the landlord took almost another seven months to issue a stage two response. This is a significant complaint handling failure which would have caused inconvenience to the resident as he was left waiting for a very long time for a response to his concerns.
  7. The stage two complaint response gave a timeline of events that does not correspond with the evidence the landlord has provided to this Service. For example, it stated that the first contact the resident made to the landlord about the issue regarding his neighbours was on 16 March 2021, and that the landlord had replied the following day. This Service has not had sight of these emails, and the complaint response failed to acknowledge previous communication on the issue. Landlords are expected to respond fully and clearly to complaints. The landlord’s response did not set out the facts correctly and therefore it has not shown that it has adequately or accurately addressed the complaint points the resident raised.
  8. The landlord acknowledged the delay in issuing a stage two complaint response and gave a formal apology and £25 compensation. Whilst it is acknowledged that the landlord attempted to put things right for the resident, its offer of £25 was not sufficient in view of the length of delays in its responses and its failure to fully address the points raised in the complaint. Therefore, a more significant award of compensation is due. In accordance with the Ombudsman’s remedies guidance (published on our website), an award of £300 compensation may appropriately remedy circumstances where there has been maladministration by the landlord but where this has not had a permanent impact on the resident.
  9. This Services acknowledges that the resident’s original complaint was not upheld and that this was a reasonable outcome. The delay in the handling of the resident’s complaint did not impact on that outcome. The landlord had communicated much of the information contained in the complaint responses on numerous occasions prior, which would have reduced the impact of the delayed responses on the resident. Regardless, there appears to be no good reason for the significant delays and the resident should be able to expect the landlord to act within its published policies.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s concern that the age of his neighbours is a breach of their tenancy agreement.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s associated complaint.

Orders

  1. The landlord must carry out the below orders within four weeks of the date of this determination.
  2. The landlord is ordered to pay £300 compensation to the resident. This is comprised of:

a.     £150 for failures in handling the resident’s complaint at stage one of the landlord’s complaint procedure;

b.     £150 for failures with handling the resident’s complaint at stage two of the landlord’s complaint procedure.

c.      This amount is inclusive of the £25 already offered. This can be deducted from the total amount if it has already been paid.

  1. The landlord is ordered to acknowledge and apologise to the resident for its failure to process the resident’s formal complaint of 27 June 2021 and its failure to recognise this in its stage one response.

Recommendations

  1. This Service recommends that the landlord contact the resident to clarify its policy specifically on the issue of his grandchildren living with the resident in his property.