Ashford Borough Council (202001169)

REPORT

COMPLAINT 202001169

Ashford Borough Council

9 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 member 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 managing agent 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:
   1. The managing agent’s communication with the resident after he informed it in February 2018 he was no longer living at the property.
   2. The managing agent’s request to the resident concerning charges at the end of the tenancy.
   3. The managing agent’s handling of the associated complaint.

Jurisdiction

2. 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.
3. After carefully considering all the evidence, in accordance with paragraph 39 (e) of the Housing Ombudsman Scheme, the following aspect of the complaint are outside of the Ombudsman’s jurisdiction: The managing agent’s communication with the resident after he informed it in February 2018 he was no longer living at the property.
4. After the resident informed the managing agent in February 2018 that he was no longer living at the property, he states that he became aware on 5 January 2019 that his name remained on the tenancy of the property which was preventing him from seeking rehousing. His formal complaint about this was not made until 28 January 2020, nearly two years since the event and a year after he became aware of the issue.
5. Paragraph 39 (e) of the Housing Ombudsman Scheme confirms that the Ombudsman will not consider complaints which were not made to the member within a reasonable period of time, which would normally be within six months of the matters arising. This is because, with the passage of time, historical events become more challenging to investigate and more difficult to reach a reliable determination upon. Therefore, a determination on this aspect of the complaint will not be made.

Background

6. The resident commenced a joint assured tenancy, together with his ex-partner, with a private landlord in December 2014. The managing agent is a local authority landlord. Both the resident and his ex-partner signed a tenant declaration, or ‘deposit bond’, on the same day to confirm that up to a month’s rent could be claimed by the landlord from the managing agent (and in turn by the managing agent from the residents) to make good any damage caused to the property or pay for any cleaning that was required resulting from a tenancy breach.
7. The tenancy agreement with the resident confirms that he is to maintain the property to the same condition as at the start of the tenancy. At the end of the tenancy the resident is to return the property in the condition specified in the agreement and remove all belongings, otherwise it will charge him for the cost of their storage or disposal.
8. The managing agent’s formal complaints procedure webpage confirms it has a two-stage complaints procedure with complaints at stage one to be responded to within 15 working days and final stage complaint are to be responded to within 20 working days. If more time is needed to respond, it is to keep the resident informed of progress.

Summary of events

9. The managing agent wrote to the resident on 24 January 2019 informing him that it was seeking possession of the property to “carry out essential repairs”. It enclosed a section 21 notice with an expiry date of 15 April 2019.
10. The resident called the managing agent on 21 February 2019. During this conversation he stated that the property’s garage was “full of rubbish” including rubbish bags, recycling, and furniture. The managing agent advised the resident that if it were to arrange the clearance of the rubbish then he would be recharged for this.
11. The managing agent attempted to visit the property on 26 February 2019 and was denied access by the resident. It emailed him later that day to remind him that it had provided notice of the visit and therefore his refusal of access was a breach of his tenancy agreement. The managing agent noted that the garage door was broken and the side door to the property had been blocked with a fence panel and asked him to provide confirmation that the rubbish had been disposed of.
12. The resident called the manging agent on 7 March 2019 to report that the garage door required a repair, and a visit was arranged. It confirmed that it would arrange for the clearance of the rubbish.
13. On 21 October 2019, the resident requested the manging agent provide an “official statement” to confirm that he had been removed from the tenancy. He added that he had spent a year believing he had been removed when he had not. The managing agent replied the following day to state that it had never received a request from the resident to be removed from the tenancy. It confirmed that, following the check-out of the property, of which the corresponding report was attached, the dilapidations it identified exceeded the value of his deposit bond, which it would take as payment. The managing agent advised it would issue an invoice for this, in the joint names of the resident and his ex-partner and issue a closing rent statement detailing rent arrears which would provide evidence of the end of the tenancy.
14. The resident emailed the managing agent on 6 November 2019 asserting that he had informed it on 27 February 2018 that he was leaving the property. He said that he had inferred that he had been removed from the tenancy as he had been removed from the electoral register there and all correspondence was to be addressed to solely his ex-partner.
15. The next day the managing agent advised the resident that it would not have removed him from the tenancy as it had developed concerns with the condition of the property within a year of the tenancy commencing. It further explained that if it had received a request from him to be removed from the tenancy, it would have informed him that doing this would have required ending the tenancy, which would have made his ex-partner and her children homeless.
16. The managing agent wrote to the resident on 8 November 2019 to inform him that the cost of clearing the property totalled £1,100 and therefore it had claimed the maximum of £846 from the rental deposit bond. It confirmed that he would be invoiced “in due course” and it might pursue him later for the remaining costs.
17. The managing agent provided an invoice to the resident on 16 January 2020 which confirmed that it had charged him and his ex-partner £846 for the cost of dilapidations.
18. The resident raised a formal complaint with the managing agent on 28 January 2020 concerning several issues. One of which was that, when he informed the managing agent by email in February 2018 that he was leaving the property to stay with family, he questioned why he had not been “approached” about being removed from the tenancy agreement.
19. The resident disputed the manging agent’s assertion that it had expressed concerns about the state of the property, stating that he had never been notified about this. He described having difficulties in subsequently clearing the property ahead of the repossession because of childcare and health issues. The resident stated that his subsequent efforts to find accommodation had left him in financial difficulty and he remained dissatisfied that nobody asked him if he was aware he needed to request removal from the tenancy.
20. The managing agent issued its stage one complaint response to the resident on 17 March 2020 which addressed some of the issues he had raised but did not respond to his concerns about remaining on the tenancy agreement and consequently his responsibility for the clearance of the property in October 2019.
21. Following contact from the resident on 19 May 2020 this Service wrote to the managing agent to ask it to respond to the resident’s concerning the following: the lack of a breakdown of the recharge applied at the end of his tenancy and that it did not seek to remove him from the tenancy agreement after he informed it that he would no longer be living there.
22. After speaking to the resident on 2 July 2020, the managing agent issued its final stage complaint response to him on 15 July 2020. In this, it acknowledged that he did not live at the property throughout the total period of the tenancy but asserted that, when it did receive a request from him to be removed from the tenancy, a section 21 notice had already been issued which prevented any changes being made to the agreement.
23. The managing agent asserted that the resident and his ex-partner had both been advised “numerous times” that if the condition of the property was not improved then charges would apply. It referred to a letter from 1 June 2017 about its concerns over mould growth and the condition of the garden which it “suspected” was attracting vermin. The managing agent stated that the resident had been advised throughout the course of the tenancy that both he and his ex-partner remained jointly and severally responsible, noting that it had reminded him of this on 21 February 2020 in his call discussing the garage and garden.
24. The managing agent enclosed the property check-out report again which it had reviewed and confirmed that it was entitled to recharge the resident for the condition in which the property had been returned to it. It referred to the rental deposit bond the resident had signed which confirmed his obligation to pay this. The managing agent requested that the resident pay the invoice sent to him and advised that it could discuss a payment plan.

Assessment and findings

The managing agent’s request to the resident concerning charges at the end of the tenancy

25. It is not disputed that the resident did not leave the property in the condition outlined in the tenancy agreement, above at point 7. Therefore, it was reasonable for the managing agent to hold the resident liable for its costs in restoring the property to the condition it was let in. Neither the tenancy agreement, nor the resident’s tenant declaration, at point 6, specify that a breakdown of the costs involved in the clearance of the property after the termination of the tenancy must be provided.
26. Nevertheless, on 21 October 2019 and 15 July 2020 the managing agent provided the check-out report of the property detailing the condition it was left in after the end of the tenancy. This, and the invoice provided to the resident on 16 January 2020 demonstrated that the managing agent made reasonable efforts to substantiate the costs it had incurred in restoring the property to its initial condition. Therefore, the managing agent made reasonable efforts to inform the resident about these charges.

The managing agent’s handling of the associated complaint

27. The managing agent’s formal complaint procedure, above at point 8, confirms that a stage one complaint should be responded to within 15 working days. The resident’s stage one complaint was raised on 28 January 2020 and it responded on 17 March. This was 18 working days in excess of the time frame specified in its procedure and the managing agent therefore failed to adhere to its timeframe to respond. Furthermore, it did not address all the concerns raised by the resident in his complaint.
28. The Ombudsman requested that the managing agent address the resident’s continued dissatisfaction as part of its formal complaint procedure on 19 May 2020. As it had already issued a stage one complaint response to him, it would have been appropriate for it to escalate the complaint to the final stage at this point. It issued its final complaint response to the resident on 15 July 2020, after 41 working days. This was 21 working days in excess of the timeframe specified in its formal complaint procedure above at point 8 and was a further failure by the managing agent to adhere to its procedure.
29. Considering the manging agent’s failures to deal with the complaint in accordance with its procedure, compensation of £75 should be paid to the resident. This award is in line with the Ombudsman’s remedies guidance where there has been a “failure to meet service standards for actions and responses but where the failure had no significant impact”. This award is made to recognise the likely frustration and uncertainty caused by the managing agent’s failure to deal with the complaint in a timely manner and address all his concerns.

Determination (decision)

30. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the managing agent in its request to the resident concerning charges at the end of the tenancy
31. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the managing agent in its handling of the associated complaint.

Reasons

32. The managing agent acted in accordance with the tenancy agreement in requesting the charges from the resident and made reasonable efforts to inform the resident of the charges it incurred in restoring the condition of the property at the end of the tenancy.
33. The managing agent failed to adhere to its formal complaints procedure and did not address all of the resident’s concerns.

Orders

34. Within 28 days, the managing agent is to pay £75 compensation to the resident.