‘Johnnie’ Johnson Housing Trust Limited
9 August 2023
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 is about the landlord’s:
- Disposal of the late resident’s possessions following the end of the tenancy.
- Complaint handling.
Background and summary of events
- The late resident was an assured tenant of the landlord whose tenancy began on 28 July 2014. He passed away on 29 April 2021.
- The property is a first floor flat within an ‘independent living’ scheme for older people.
Summary of events
- On 6 May 2021, the landlord emailed the late resident’s daughter. It confirmed that, as per an earlier conversation, it had agreed to waive any rent charges from 9 May 2021, providing that it received the keys to the property and a completed termination of tenancy form by this date (and a copy of the death certificate in the following 4 weeks).
- The late resident’s daughter responded the same day confirming the agreement. She also mentioned that the landlord had offered to remove any personal possessions in the property that she was unable to remove, without charge, and that this was a welcome offer. She said that she had contacted a charity regarding it possibly taking some of the furniture and electrical goods from the property, and would liaise with the landlord about giving access to the charity if this was confirmed.
- On 8 May 2021, the late resident’s daughter completed the termination form for the property. Below the signature box she wrote “this form signed in conjunction with emails…on 6 May 2021. Agreed on that basis”.
- The late resident’s daughter emailed the landlord on 10 May 2021 to confirm that the property had been vacated and keys surrendered. She advised that the charity would be attending on 19 May 2021 to assess items in the property. She said that the charity could not confirm a time as of yet, but would advise her 30 minutes in advance of arrival so she could inform the landlord, which had previously advised her that it would facilitate access. The late resident’s daughter stated that she had labelled items for the charity, and also items for the landlord to dispose of as previously offered. The landlord responded the same day confirming its understanding of arrangements.
- On 18 May 2021, the late resident’s daughter emailed the landlord to confirm that the charity would be attending on 19 May 2021 and would call her 30 minutes before its arrival so that she could advise the landlord which would grant access.
- On 19 May 2021, the landlord failed to grant access to the property to the charity. The late resident’s daughter states that she called her contact at the landlord twice and left a voicemail but received no response.
- The charity reattended the property on 15 June 2021. The late resident’s daughter had arranged for a neighbour to grant access to the property on this date using a key she had retained for sentimental reasons. The landlord was on site at this time and refused the charity access, stating that the items within the property were now under its ownership.
- The late resident’s daughter visited friends within the block of flats containing the property on 24 July 2021. She said that whilst there that she saw the majority of her late father’s belongings being stored within a vacant flat in the block. She said she also spoke with relatives of the new tenant of her late father’s property, who said they had been told by the landlord that they could take any of her late father’s possessions for their own use.
- On 26 July 2021, the landlord contacted the late resident’s daughter after hearing she had been at the property ‘looking for furniture’. During the call, the landlord denied any knowledge of an arrangement for the charity to assess or collect items and claimed that all possessions left in the property had been disposed of in accordance with its procedure and the termination form that she had signed.
- The late resident’s daughter states that later that day, another resident in the block saw her late father’s possessions being removed from the block and sent her photographs of this occurring.
- The late resident’s daughter logged a complaint with the landlord on 26 July 2021. As part of her desired outcome, she requested compensating for the £327 she had paid to the charity to remove items, and for the landlord to compensate the charity for lost revenue it would have raised from selling the items it would have collected.
- On 11 August 2021, the landlord provided its stage 1 complaint response. It said that:
- It had been unable to allow the charity access to the property on 19 May 2021 due to the relevant member of staff dealing with an urgent matter elsewhere. The staff member had not felt it appropriate to contact the resident’s daughter as she had previously asked the landlord not to do so.
- It had rightfully denied the charity access on 15 June 2021 as the key that the resident’s daughter had provided should have been returned at the end of the tenancy, and the property now had a new tenant.
- It had removed the items at its own cost as a goodwill gesture, despite its procedure being to recharge costs in these instances.
- It would not be awarding any compensation due to it having gone above and beyond to assist with the ending of the tenancy and removal of items.
- On 16 August 2021, the late resident’s daughter requested to escalate her complaint to stage 2 of the landlord’s process. She said that she had paid £327 to the charity to carry out the removal of the belongings, based on the agreement she had made with the landlord on 6 May 2021 which it had then broken. She refuted the landlord’s claim that she had at any point requested no further contact from it, pointing out that she had contacted it on 19 May 2021, which would not have been in keeping with such a request. She also claimed that her late father’s former property had remained empty until 7 July 2021, when another resident from the block had been relocated to it due to water ingress in their own property.
- On 10 September 2021, the landlord provided its stage 2 complaint response. This stated that it was satisfied that the stage 1 complaint had been fully investigated and dealt with in line with its complaints policy, and upheld the original decision.
Assessment and findings
Scope of investigation
- The Housing Ombudsman Scheme (the Scheme) states that complaints can be brought by a person “who is or has been in a landlord/tenant relationship with a member” or with authority to make a complaint on behalf of such a person who is deceased.
- The events subject to this complaint occurred after the late resident had passed away, at which point the tenancy (whilst still ‘live’) formed a part of his estate, with his daughter appointed as executor. The complaint is therefore brought to the Ombudsman by the estate, which had a landlord/tenant relationship during the relevant events.
- As an estate is a collection of assets and liabilities belonging to the deceased, it is not capable of experiencing distress, inconvenience or any similar intangible detriment. This investigation will therefore consider only any calculable financial loss caused to the estate by the landlord’s actions or inaction. To do otherwise would serve to make the late resident’s daughter the complainant, and the Scheme’s requirement for a landlord/tenant relationship would not be satisfied.
- Part of the desired outcome stated by the late resident’s daughter during the complaints process was for the landlord to compensate the charity for the revenue it had lost in not being able to take and sell her late father’s possessions. The Scheme only allows the Ombudsman to make orders for landlords to pay compensation to the complainant in a case, and so it is beyond the remit of this Service to make such an order to a third party.
Disposal of possessions
- In the email exchange of 6 May 2021, the late resident’s daughter clearly expressed her intention to engage a charity to assess and remove any of her late father’s belongings that it felt it could make use of – with the landlord disposing of anything remaining as per its offer. On the termination of tenancy form, completed 2 days later, she made reference to the email exchange, and that the end of the tenancy was agreed “on that basis”.
- The resident’s daughter sent further emails to the landlord on 10 May 2021 and 18 May 2021, confirming arrangements for the charity to attend on 19 May 2021 and for the landlord to grant it access. It is evident that this arrangement was made and known between the 2 parties, and this was acknowledged by the landlord in its stage 1 complaint response.
- The landlord’s explanation (also provided in the stage 1 complaint response) that the relevant member of staff was unable to attend the block on 19 May 2021 to grant access due to an urgent matter elsewhere is a reasonable one. However, it was not reasonable for the landlord to fail to inform the resident’s daughter of this fact – particularly when she had made 2 attempts to call it and left a voicemail on the morning of 19 May 2021.
- The landlord’s justification for this was that the resident’s daughter stated in a previous email that she wished to have no further contact with the landlord. This is disputed by the resident’s daughter who described this as a distortion of her words. This Service has not seen any correspondence from her to the landlord in which such a request could be said to have been stated or implied. Even had this position been stated by the resident’s daughter, it would still have been reasonable for the landlord to inform her of a last minute change to the arrangement, and clarify her wishes with regards to the relevant belongings labelled for the charity.
- When the charity attended on the second occasion, on 15 June 2021, the landlord refused access stating that the items were now under its ownership. Although it was reasonable for the landlord to have concerns about the charity attending without its knowledge and being given access to the property by another resident, it would have been appropriate at this point to contact the resident’s daughter and discuss the matter further – which it again failed to do. At this time, the items were still within the block (as evidenced by the fact they were seen there by the resident’s daughter some weeks later) and could have been removed by the charity as originally arranged.
- The landlord claimed ownership of the late resident’s possessions based upon clauses in its tenancy agreement and termination form. Both of these documents state that the landlord accepts no responsibility for any items left behind when a property is vacated and will arrange their disposal, but makes no mention of it taking ownership of them.
- The landlord’s ‘end of tenancy procedure’ states that once a “tenancy comes to an end, if there are goods still left in the property, the Tort Notice Procedure should be followed”. Whilst this Service has not been supplied with a copy of this procedure, the landlord has provided no evidence that a tort notice (which notifies the owner of goods abandoned on private land that they will be disposed of and/or sold) was served either on the property, or to the resident’s daughter – whose postal address and email address were both known to the landlord.
- In its phone call of 26 July 2021, the landlord asserted to the late resident’s daughter that her father’s belongings had already been disposed of. The late resident’s daughter has provided this Service with photographs which she states in fact show the items being removed from the block later that afternoon. The landlord has not provided any records in relation to the storage, removal or disposal of the relevant belongings to dispute this.
- Despite the resident’s daughter advising that she had paid the charity £327 to the charity in order to carry out the collection which it failed to facilitate, the landlord declined to offer any compensation for this during its complaints process, stating that its staff had “gone above and beyond” to assist with the ending of the tenancy and removal of goods. However, it also admitted that it failed to facilitate access for the charity and to appropriately contact the resident’s daughter about this.
- The landlord’s compensation policy allows it to award compensation for loss of, or damage to, personal belongings in circumstances where this is caused by the landlord. It would have been appropriate for the landlord to utilise this to reimburse the estate for the fee paid to the charity, as the service for which this fee was paid for was not received due to the landlord’s actions.
- Although it has since been revised, the landlord’s complaints procedure at the time of these events stated that complaint reviews at stage 2 “will be undertaken by a panel comprising of a board member, resident representative (complaints advocate) and director/senior manager”. The landlord has provided no evidence that this occurred, and the stage 2 acknowledgement refers only to a senior manager conducting the review – who is the sole signatory of the stage 2 response letter.
- The stage 2 response itself stated only that a review of the stage 1 complaint had been carried out and found that it had been “investigated and dealt with” in line with its complaints policy and so upheld the original decision. The landlord failed to justify this decision, make any reference to the original events from which the complaint arose, or address the further points raised by the late resident’s daughter in her request to escalate her complaint.
- The version of the Ombudsman’s Complaint Handling Code in place at this time allowed that, where appropriate, a stage 2 response could be a review of stage 1 to ensure the correct decision was made. However, it also states that the decision made, and reasons for the decision, must be confirmed to the complainant in writing. In this instance, the reasons were not clear and the response as a whole did not add any value to proceedings or address the complainant’s outstanding concerns.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s:
- Disposal of the late resident’s belongings following the end of the tenancy.
- Complaint handling.
- The landlord failed to fulfil its arrangement to grant access to the charity and did not take steps to inform the resident’s daughter or make alternative arrangements. It subsequently claimed ownership of the items without following the required tort notice process and disposed of these against the wishes of the late resident’s estate.
- The landlord failed to follow its complaint procedure and convene a review panel at stage 2 of its complaints process. The stage 2 complaint response it did provide was inadequate, opaque and did not address points raised by the resident in her escalation request.
- Within 4 weeks of the date of this report, the landlord is ordered to:
- Pay the late resident’s estate compensation of £327 to reimburse it for the costs accrued in arranging the charity’s collection of items.
- Apologise in writing to the executor of the estate (the late resident’s daughter) for its maladministration in disposing of the late resident’s possessions.
- The landlord should reply to this Service with evidence of compliance with these orders within 4 weeks of the date of this report.
- It is recommended that the landlord reviews its processes around the end of tenancies to ensure robust record keeping, particularly in relation to the service of tort notices and the inventory, storage and disposal of goods left within vacated properties.
- The landlord should reply to this Service within 4 weeks of the date of this report to confirm its intentions in regard to this recommendation.