Lewisham Council (202209632)

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REPORT

COMPLAINT 202209632

Lewisham Council

8 March 2024


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:
    1. Rent account, and the associated arrears.
    2. Rehousing application.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Jurisdiction

  1. What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 42(j) of the Scheme, the landlord’s handling of the resident’s rehousing application is outside of the Ombudsman’s jurisdiction.
  3. When the resident raised her complaint, in June 2022, she expressed a concern about how the landlord’s handling of her rent account had impacted on her rehousing application. The resident also raised a concern with this Service, on 25 November 2022 about the landlord’s ongoing handling of her rehousing application.
  4. Paragraph 42(j) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint handling body.
  5. Part 6 of the Housing Act (1996) governs the allocation of local authority housing stock in England. It sets out the circumstances where reasonable preference must be given to certain applicants, when making decisions about offers of property. The reasonable preference criteria include applicants living in unsuitable conditions and applicants who need to move on medical, or welfare grounds.
  6. The Housing Ombudsman can only consider complaints about transfer applications that are outside of Part 6 of the Housing Act (1996). The Local Government and Social Care Ombudsman (LGSCO) can review complaints about applications for rehousing that fall under Part 6. This includes complaints concerning applications for rehousing that meet the reasonable preference criteria, and the assessment of such applications.
  7. The resident’s rehousing application falls within Part 6 of the Housing Act (1996), and was dealt with by the landlord within its capacity as the local authority. As such, it cannot be reviewed by the Housing Ombudsman, and the complaint is better suited to the LGSCO. The resident may wish to raise a complaint with the LGSCO about the landlord’s handling of her rehousing application.

Background

  1. The resident is a secure tenant of the landlord and has been in her current property since May 2011. The property is a 2 bedroom flat in a block. The landlord does not have any recorded vulnerabilities for the resident.
  2. The resident was a tenant of the landlord in 2 different properties before her current tenancy began. The arrears mentioned in the resident’s complaint relate to arrears, the landlord claimed, were carried over from the previous tenancies dating back to before 2011. Given the passage of time that has passed, it is not within the remit of this investigation to consider the landlord’s handling of the rent account, and how it calculated the arrears in 2011. Instead, this investigation has considered the landlord’s handling of the rent account from around the time the resident made her stage 1 complaint in July 2022. We have considered whether the landlord’s response around that time was reasonable in all the circumstances of the case.

Summary of events

  1. The resident submitted a refund request for overpaid water charges on 18 January 2022. The landlord responded on 31 March 2022 and said that the refund would not be paid directly, and would be offset again arrears from a former tenancy, totalling £1,765.70.
  2. The resident contacted her local MP on 1 June 2022, asked for assistance in raising a complaint with the landlord, and said:
    1. She was being “fob[ed] off” by the landlord, as it was not providing an explanation of how she had accrued the arrears.
    2. She asked for an explanation of why she had not been paid the water bill refund directly.
  3. The landlord sent the resident a stage 1 complaint acknowledgement on 11 July 2022. It apologised for the delay in acknowledging the complaint and said it would send its response by 25 July 2022.
  4. The landlord sent the resident its stage 1 complaint response on 18 July 2022, and said:
    1. The rent arrears were associated with her previous property, and it was “allowed to chase” payment of those arrears, in line with its policy.
    2. In line with its policy, any credit owed to the resident was used to reduce any debts owed. It used the water credit to offset her arrears.
    3. It had found it had acted “correctly”, and no further actions were needed in relation to the matter.
  5. The resident contacted the landlord on 29 July 2022 and asked her complaint to be taken to stage 2. She expressed a concern that she would have been unaware of the debt, had she not asked for the water bill refund. She asked the landlord to write off the arrears as they “should not exist”, and for it to pay the water bill refund directly to her. The landlord acknowledged the resident’s stage 2 complaint on 8 August 2022, apologised for the delay in acknowledging the complaint, and said it would issue its response by 6 September 2022.
  6. The landlord sent its stage 2 complaint response to the resident on 18 August 2022, and said:
    1. It noted that it had not included any details arrears from previous her previous tenancy in her current tenancy agreement, as was usual practice.
    2. The exclusion of the information did not mean she was not liable for the debt.
    3. It had sent her a letter on 4 June 2015 advising her about the arrears, and further information in its rent increase letter of 2021.
    4. The arrears were due, so it was not prepared to write them off.
    5. It quoted its debt management policy that outlines it uses any credit to offset arrears, and explained it had done so with the water bill refund.
    6. It did not uphold the complaint. It explained she could have her complaint reviewed by an “independent adjudicator” at stage 3 of its process if she remained unhappy.
  7. The resident contacted the landlord on 31 August 2022 and asked her complaint to be taken to stage 3 of its process. She said she had been trying to get the issue resolved for “over a year”, and believed she did not owe the arrears.
  8. The landlord sent the resident its stage 3 response on 30 September 2022. The investigation was completed by an “independent adjudicator” and the response said:
    1. The records showed her previous 2 tenancies both ended in a transfer with a balance of “zero”. The records read as if the arrears on both accounts were “written off”. The landlord had provided screenshots for the investigation that showed the arrears had been carried over.
    2. It had established the arrears were “clerical errors” and the record keeping and communications were “not good enough”. The way the rent account was presented was confusing for residents.
    3. The resident had suffered “avoidable distress” about the issues and the landlord had agreed to write off the arrears.
    4. The landlord should apologise and pay the resident £100 in compensation for the distress experienced.
  9. The landlord wrote to the resident on 5 October 2022 and confirmed the findings of the independent adjudicator. It apologised and advised it would pay the recommended £100 in compensation in recognition of its poor record keeping, and the “avoidable distress”.
  10. The resident contacted this Service on 25 November 2022 and asked us to investigate her complaint, as she was unhappy with the landlord’s final response.

Assessment and findings

Relevant obligations, policies, and procedures

  1. The landlord’s compensation, reimbursement, and remedies procedure states that it will offset any compensation, or reimbursement, owed to a resident against any arrears on their rent account.
  2. The landlord’s complaints procedure states it will acknowledge stage 1 complaints within 5 working days, and send a response within 10 working days. The procedure states it will acknowledge stage 2 complaints within 5 working days, and send a response within 20 working days. The landlord has a 3 stage procedure. Stage 3 complaints are investigated by an “independent adjudicator”, and issued within 20 working days.

The landlord’s handling of the resident’s rent account, and the associated arrears

  1. The resident moved into her current property in 2011, and the landlord stated that the arrears relate to her previous tenancy. Later, in 2015, the resident made a disrepair claim against the landlord, and a settlement agreement was reached in 2015. As part of her complaint the resident raised a concern that, as part of the settlement of the claim, the landlord was to write off any arrears the resident had. Due to the length of time that has passed since the above events, it is not appropriate for this investigation to consider the landlord’s handling of matters dating back to 2011 and 2015. Instead, we have considered whether the landlord’s approach was reasonable in the circumstances at the time the resident made her complaint.
  2. This Service has seen internal emails from 2015 where the landlord appears to be unsure whether the resident’s account was in fact in arrears, and questioned whether it could “legitimately” pursue the debt. For the reasons given above, this Service has not found this to be a failing. Reference to it here is simply to provide useful context for the landlord’s later decision, and its admitted failings in relation to record keeping.
  3. The evidence seen for this investigation indicates that there was a 2 month delay after the resident requested a refund of the water charge, and the landlord formally outlining its position. This caused the resident an inconvenience, as it was an unreasonable delay. The evidence shows the resident was cost time and trouble in needing to chase the landlord for a response to her request.
  4. The landlord’s stage 1 complaint response set out its position about the arrears and its view that, at the time, its decision to pursue the arrears was legitimate. The stage 2 complaint response provided further detail about its position in relation to the refund, and its reimbursement policy. While its position in relation to the reimbursement was the correct application of its policy, it is concerning that the later stage 3 investigation considered the same set of facts, and came to the opposite conclusion in relation to the arrears.
  5. The landlord’s stage 2 complaint response admitted that it had not outlined the arrears on the tenancy agreement when the resident moved, which was its “usual practice”. It said this did not mean she was not responsible for the debt, which in itself was not unreasonable. However, it failed to acknowledge this omission caused confusion about the arrears. It also cited a letter it sent about the arrears, 4 years later. Again, the lack of acknowledgement of the time that had passed and the inconvenience this caused was inappropriate.
  6. The stage 3 complaint response provided a greater level of detail about how the confusion caused, and pointed to record keeping and communication failings. The independent adjudicator outlined points of learning for the landlord and recommended it pay the resident £100 for the distress the issue had caused. The landlord accepted the findings, agreed to pay the compensation, as well as write off the arrears. This was reasonable in the circumstances. However, the landlord’s response to the resident on 5 October 2022 failed to outline what learning it had done about its handling of the matter, which was inappropriate. It is noted it accepted the record keeping failings alluded to in the independent adjudicators investigation, but it failed to explain to the resident what it intended to do to learn from those findings.
  7. The landlord wrote off the arrears, and paid the resident the water bill refund. This went some way to putting right its failings in its handling of the matter. The landlord also offered £100 in compensation for the distress the matter had caused the resident. This did not fully put things right for her. The distress the resident felt at being told she owed the landlord £1,765.70 is evident. And while it is noted it had written to her in 2015, the evidence indicates it was not actively pursuing the debt until she raised her complaint in 2022.
  8. The resident experienced an inconvenience of repeatedly raising the issue with the landlord, and there was a delay in providing its initial response. The landlord failed to show appropriate learning about its handling of the matter. The £100 the landlord offered did not fully put right the inconvenience, time and trouble, the resident was cost in the 7 months she spent pursuing the matter. As such, an appropriate series of orders are made below.

Complaint handling

  1. The landlord acknowledged the resident’s stage 1 complaint on 11 July 2022, which was 27 working days after she first complained, through her local MP. This was well outside of the timeframe set out in its complaint procedure, and the Ombudsman’s Complaint Handling Code (the Code). The result of this was an unfair and hard to access complaints procedure, which caused an inconvenience. It is noted that the landlord apologised for the delay when it acknowledged the complaint, this was appropriate in the circumstances.
  2. The delay in acknowledging the complaint meant the stage 1 complaint response was sent 32 working days after it was made. This was well outside of the timeframe set out in its policy and the Code. It is noted the response was sent within 10 working days of the acknowledgement. However, the landlord’s stage 1 response failed to acknowledge, or apologise, for the fact the stage 1 complaint response was delayed. This was unreasonable and caused a further inconvenience.
  3. At the time of the resident’s complaint the landlord operated a 3 stage complaints procedure. The Code states that 2 stage procedures are ideal, and if a landlord has a 3 stage procedure it must explain why in its complaint handling self assessment. The evidence seen as part of this investigation indicates the landlord’s self assessment does explain the reason for this, which means it is Code compliant.
  4. However, the 3 stage procedure meant that the resident experienced a protracted complaint process, and the substantive issue was concluded 7 months after the resident first challenged the arrears. It is noted that the third stage upheld the complaint, but as outlined above the resident experienced a protracted and hard to access process in order to get a final response.
  5. As outlined above, it is concerning that the stage 3 complaint investigation, based on the same set of facts, made a very different findings to the stage 1 and 2 investigations. While the Ombudsman welcomes the use of an independent investigation, it is reasonable to conclude such a conclusion was inappropriately protracted for the resident, which caused an inconvenience.
  6. The landlord accepted there was a delay in acknowledging the stage 1 complaint, which created a protracted and hard to access complaint process for the resident. It appropriately apologised at the time, but its later complaint response failed to apologise and offer appropriate redress for the delays in its complaint handling. The inclusion of a third stage in the complaints process led to a further delay in the resident receiving a final complaint response.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the rent account, and the associated arrears.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s complaint handling.

Reasons

  1. The resident experienced an inconvenience of repeatedly raising the arrears issue with the landlord. The landlord failed to show appropriate learning about its handling of the matter. The £100 it offered did not fully put right the inconvenience, time and trouble, the resident was cost in pursuing the matter.
  2. The landlord accepted there was a delay in acknowledging the stage 1 complaint, which created a protracted and hard to access complaint process. It appropriately apologised at the time, but its later complaint response failed to apologise and offer appropriate redress for the delays in its complaint handling. The inclusion of a third stage in the complaints process led to a further delay in the resident receiving a final complaint response.

Orders

  1. Within 4 weeks the landlord is ordered to:
    1. Apologise for the failings identified in this report.
    2. Pay the resident £350 in compensation, made up of:
      1. The £100 it offered for its handling of the rent account, and the associated arrears (if it has not already done so).
      2. A further £150 in recognition the distress and inconvenience caused by its handling of the rent account, and the associated arrears.
      3. £100 in recognition of the inconvenience caused by its handling of the complaint.
  2. Within 8 weeks the landlord is ordered to conduct a review into its handling of the rent account issue. The review should identify areas for learning, when considering the failings identified in its stage 3 investigation, and the failings identified in this report.