Hexagon Housing Association Limited (201912731)

REPORT

COMPLAINT 201912731

Hexagon Housing Association Limited

28 April 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 concerns:
1. the landlord’s handling of the resident’s eviction.
2. the landlord’s complaint handling.
3. the landlord’s response to concerns raised by the resident that were not addressed as a formal complaint through the landlord’s complaints procedure.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39 of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:
In accordance with paragraph 39 (a) of the Housing Ombudsman Scheme, we cannot investigate complaints which “are made prior to having exhausted a member’s [landlord’s] complaints procedure”. In the resident’s correspondence with this Service he has referred to several issues that have not been addressed by the landlord throughout its complaint procedure, which concluded in August 2020. These issues include but are not limited to the resident’s reports of his missing possessions, his concerns of events that took place whilst he still a licensee of the landlord, and his concerns about the conduct of certain members of the manging agent’s staff. Therefore, these issues are not ones that the Ombudsman can consider at this point as the landlord needs to be provided with the opportunity to investigate and respond to them through its complaints process. The landlord’s complaint responses addressed the resident’s eviction and explained the role that its managing agent played in the eviction process. Therefore, the resident would need raise his other concerns as a formal complaint to the landlord and once he has exhausted the landlord’s internal complaints procedure, he could refer his complaint to this Service.

Background and summary of events

The resident was a licensee of the landlord.
The property that the resident lived in is part of a building which is run by a managing agent (MA) acting on behalf of the landlord.
After receiving three verbal and written warnings from the MA, on 28 October 2019 the resident received a “28 Day Behaviour Contract”. This was because the MA said he had breached various clauses of his licence. This contract advised the resident that if he breached his licence conditions further, he would potentially be served with a Notice to Quit (NTQ).
The resident was subsequently served with a NTQ on 5 December 2019. The MA said that although it had advised the resident beforehand that a change in his behaviour may have redeemed himself and made the notice invalid, this opportunity had been withdrawn following a recent incident that had occurred prior to the notice being served. The MA also advised how the resident could appeal this decision.
On 6 December 2019 the MA asked the landlord for delegated authority to evict the resident. It apologised that it had not asked the landlord for permission before serving the resident with the NTQ.
The landlord authorised the serving of the NTQ and eviction on 23 December 2019 after reviewing a chronology of events from the MA concerning the resident and his behaviour.
On 31 December 2019 the landlord advised the resident that its MA had asked its permission to evict him and set out the reasons why the resident had breached his licence agreement. The landlord then asked the resident if he wanted it to review its decision to agree to the NTQ.
On 27 December 2019 the MA confirmed with the resident that it would extend his NTQ following the resident’s request on 24 December 2020. The MA therefore advised the resident that he would need to vacate the property on 6 January 2020.
After several emails from the resident, on 3 January 2020 the landlord concluded that it would not reverse its decision concerning the serving of the NTQ.
On 9 January 2020 the MA emailed the resident to acknowledge the stage one complaint that he had made in a telephone conversation earlier that day. However, specific details of this complaint are unknown as the MA has not provided the Ombudsman with any notes from its telephone conversation with the resident.
On 23 January 2020 the MA issued its stage one complaint response. It responded to the resident’s concerns about the removal of a hoover from his property. The MA clarified that the hoover was its possession and not the resident’s so it therefore “[had] a right to collect it”. It said that it had followed the correct eviction procedure. In a timeline it summarised the actions it had taken leading up to the resident’s eviction. It concluded that it had not acted illegally and had acted in accordance with its “ending an occupancy policy and procedure”. It explained in what circumstances the resident could claim that it had illegally evicted him.
It advised the resident to contact it within 15 working days (by 13 February 2020) if he wanted to escalate the complaint.
On 18 May 2020 this Service contacted the landlord and asked it to advise the resident about the status of his complaint concerning his eviction and the way his complaint was handled.
On 4 June 2020 the landlord called the resident to discuss his complaint. The resident then sent the landlord an email that said that the eviction notice he had been served was not a “legally recognised document” as such a document needed to be completed on a “particular form”.
On 24 June 2020 an individual from the MA emailed the resident. He asked the resident to submit a detailed account to clarify his complaint by 3 July 2020.
On 25 June 2020 the landlord issued its complaint response. It summarised the resident’s complaint as being about the landlord’s management of its MA and his concerns that the NTQ served was invalid.
It explained in detail the agreement that was in place between itself and the MA concerning the day-to-day management of the building. It also said that its MA had asked it to agree to the serving of the NTQ. It detailed the chronology of events that had led up the resident being served with the NTQ and the incidents when he breached his licence. It said that it considered these events “adequate grounds for the serving of the NTQ”. It clarified that a NTQ would not need to be on a specific form as this was only necessary for a notice to end a tenancy, not a licence.
It concluded its response by advising the resident that he would have to escalate his complaint with the MA and exhaust its process before referring his complaint to the landlord. It explained that the resident had not escalated his complaint in January 2020.
On 25 June 2020 the resident responded to the landlord’s stage one complaint response. He asked the landlord for evidence to support its allegations against him and said that the landlord had a “duty of care to assist [him] with any of those incidents”.
On 6 July 2020, following contact from the resident, The Ombudsman asked the landlord to escalate the complaint to stage two of its complaint process.
On 20 August 2020 the landlord advised the resident that it would not escalate his complaint any further as he had not exhausted the complaint procedure of its MA. It explained that the resident had not escalated his complaint following the stage one response on 23 January 2020. It also explained that the MA had asked the resident to confirm the main points of his complaint by 3 July in order to submit a new complaint, but the resident had not done so. The landlord said that it had spoken to its MA on 12 August 2020, and it had confirmed that it would not investigate the complaint any further and it considered its “decision of January to remain[ed] effective”. The landlord said that because of this, it would not escalate the resident’s complaint.
The MA issued its stage two complaint response on 28 October 2020. In the response the MA summarised the events leading up to the resident’s eviction and said that the eviction was “entirely appropriate”. The MA also addressed other issues concerning a hoover, emails to its human resources department, staff mismanagement, staff shortcomings, and the behaviour of other residents. As explained above, these other issues have not been addressed by the landlord as a formal complaint and are therefore outside the scope of the Ombudsman’s current investigation.

Assessment and findings

Scope of investigation

As part of his complaint to the Ombudsman. The resident requested that we ask the MA for all emails between its HR department and the resident. We note that the resident wanted us to request emails from January 2019 onwards but from its response, it appears that the MA is saying that it does not have these. The MA has sent us emails between itself and the resident dating from September 2019 up until April 2021.
The resident has not specified which emails are important or what they said so we cannot take this point any further. We can only base our assessment on the information available and therefore we have completed the assessment without any further emails because these were not made available to the Ombudsman by either side. The resident has also had the opportunity to provide any further information if he wished to in support of his complaint, although it is noted that he has said he does not have copies of these emails dating from January 2019, that he asked the Ombudsman to obtain.
As mentioned earlier in the report, we are only looking at the issues raised as a formal complaint to the landlord and addressed through its complaints procedure, which concluded in August 2020. We understand there are other issues which the resident is unhappy about, but these are not part of the Ombudsman’s current investigation. Therefore, any emails to the management agent about these other issues would not form part of our investigation in any event. However, the emails relating to the resident’s eviction have been considered by the Ombudsman for this investigation.

The landlord’s handling of the resident’s eviction

It is not part of the Ombudsman’s role to assess the resident’s actions or make any judgements regarding his conduct. Rather, our role is to establish whether the landlord’s handling of the resident’s eviction was in line with its legal and policy obligations and whether its response to his complaint was fair in all the circumstances.
The licence agreement says that the resident does not have security of tenure (when a resident cannot be evicted by a landlord unless it has a court order). Also, the licence agreement says: “the landlord may end this agreement by giving you reasonable notice” and by issuing a written notice. However, the agreement does not stipulate that this written notice must be provided on a specific form. Rather, the landlord is only required to give reasonable notice in writing and explain why it has issued the NTQ. In this circumstance, the NTQ set out which clauses of the licence agreement the resident had breached and gave him a reasonable notice period of 28 days to leave the property. The landlord therefore acted appropriately and adhered to its policy in this regard.
According to the landlord’s “issuing notices and going to court guide”, in order to evict a resident who has an excluded licence, it is not necessary to go court. This is a decision that a landlord can make itself. The landlord allows its management agent to issue NTQs on its behalf. In order to issue a licensee with a NTQ, the MA must first ask for permission from the landlord.
However, no evidence has been provided for this investigation of the MA asking for permission from the landlord prior to issuing the resident with the NTQ. Instead, it asked the day after the NTQ was issued, on 6 December 2019. Nonetheless, this was not a significant failing because the landlord gave its permission retrospectively and therefore, it is highly unlikely that the outcome would have been any different if the MA had asked the landlord’s permission beforehand. The landlord also gave the resident an opportunity to appeal its decision to evict. This was a fair response from the landlord as the resident was able to refute any of the accusations that were made against him. However, the landlord decided that the resident’s responses were not reason enough for it to reverse its decision and confirmed its decision to serve the NTQ and eviction.
Ultimately, the landlord followed the correct procedure for issuing a NTQ as the resident had been given verbal and written warnings and put on a behaviour contract which made him aware that a NTQ may be the next step. The NTQ gave him a reasonable notice period and detailed why it had been issued. The resident was given an opportunity to appeal to the landlord for review its decision and not evict him. In the circumstances of the complaint, it was reasonable for the landlord to issue a NTQ based on its MA’s reports concerning the resident’s alleged breaches of the terms of his licence. It is understood that the resident disputes the MA’s account of his behaviour, but in the absence of any supporting evidence to the contrary, the landlord was entitled to rely on its MA’s reports.

The landlord’s complaint handling

The complaints policy says that a resident should first complain to the MA if the complaint concerns the support or housing service provided by the MA and go through its complaints procedure. Then, if the resident is not satisfied with the outcome, they can refer their complaint to the landlord.
In this circumstance, the resident first raised a complaint with the MA in January 2020 regarding the handling of his eviction which was orchestrated by the MA. A response was issued on 23 January 2020 which advised the resident that if he was dissatisfied with the outcome, he could appeal it providing that he responded within 15 working days. No evidence has been provided for this investigation of the resident asking to escalate this complaint. The MA also asked the resident to confirm and clarify his complaint on 24 June 2020 and respond by 3 July 2020. However, no evidence has been provided for this investigation to indicate that the resident responded to this detailing his principal concerns in order to progress his complaint.
It is understandable that the resident would have been unsure who exactly he should complain to in the first instance. However, the landlord and MA both advised the resident on what steps he needed to take in order to progress his complaint in line with the landlord’s policy and therefore managed his expectations throughout their correspondence with him. Also, it is understood that following the landlord’s final complaint response on 20 August 2020, the resident continued to correspond with its MA and the MA issued its stage two complaint response on 28 October 2020. Therefore, in accordance with the landlord’s complaint policy, if the resident remained dissatisfied with this response, he could then refer his complaint to the landlord. The resident may be able to refer his complaint back to the landlord at this stage and he should contact the landlord directly if he wishes to pursue these aspects of his complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord’s handling of the resident’s eviction.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord’s complaint handling.

Reasons

The resident was made aware that a NTQ would be a possibility following a behavioural contract and written warnings. The landlord explained why it had served the resident with a NTQ and gave him a reasonable notice period of 28 days. It acted in accordance with its policy in this regard.
The landlord gave appropriate advice to the resident about how he could progress his complaint in accordance with its complaints procedure. It therefore acted fairly and in line with its policy in its handling of his complaint about the eviction.