Southwark Council (202005991)

REPORT

COMPLAINT 202005991

Southwark Council

2 July 2021

Our approach

1. What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 
2. In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

3. The complaint is about the landlord’s decision not to reimburse the resident for money he spent on private accommodation while works to the property were being carried out.

Determination (jurisdictional decision)

4. 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.
5. After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

6. The resident has been a secure tenant of the landlord, at the property, from 28 May 2012.
7. In 2018 the resident was decanted to temporary accommodation by the landlord, while repairs to the property were carried out.  The resident has said that temporary accommodation was initially organised by the landlord for two weeks and not renewed thereafter, which led him to having to find alternative private accommodation to rent while works remained ongoing. 
8. In 2019, the resident pursed a disrepair claim against the landlord and was awarded £9,000 in damages by the court, which is detailed in the schedule to order dated 1 October 2019, as follows:

“The defendant shall pay to the claimant £9,000 in full and final settlement of the claimant’s claim.  The said monies to be paid into the claimant’s rent account and off-set against any arrears with any balance paid to the claimant’ solicitors within 28 days of the parties signing this order”.

9. Due to the resident’s rent arrears at that time which amounted to £6984.04, he received £2,015.96.
10. On 24 May 2020, the resident complained to the landlord about it not reimbursing him the money he paid for the private accommodation and he was dissatisfied that money was now being deducted from his universal credit payments to cover this.
11. On 1 June 2020 the landlord responded to the complaint at stage one of its complaints procedure. The complaint was not upheld.  The landlord explained that the disrepair claim would have been negotiated by the solicitors for both parties.
12. The landlord added that the resident would have been advised on being moved into temporary accommodation that he would remain liable for rent at the property while works were being carried out and that having a disrepair claim does not mean that a resident can withhold rent. In terms of universal credit deductions, the landlord advised that once a resident is in two months’ of arrears it is entitled to apply for direct payment.  It further explained that it is its policy to deduct monies owed to it from any compensation offer or damages award made.
13. On the same date the resident requested escalation of his complaint through the complaints procedure. He reiterated that the landlord had not renewed his temporary accommodation, which had led to him having to find an alternative property to rent, which the landlord was aware of.
14. On 1 July 2020 the landlord provided its final response to the complaint.  It did not uphold the complaint, reiterating its position at stage one of the complaints process; that a disrepair claim does not entitle a tenant to withhold rent and that the landlord’s policy is to deduct monies owed to it, as part of any compensation award made. 
15. Importantly, the landlord noted that the rent the resident paid for the private accommodation, was considered as part of his disrepair claim and settlement and therefore could not be considered again. Additionally, the landlord noted the TOMLIN order signed by the resident’s solicitors demonstrated awareness of the rent arrears and that this would be deducted from the amount paid.

Reasons

16. Paragraph 39(h) of the Housing Ombudsman Scheme states that “The Ombudsman will not investigate complaints which, in its opinion, concern matters that are, or have been, the subject of legal proceedings and where a complainant has or had the opportunity to raise the subject matter of the complaint as part of those proceedings”.
17.  The resident brought a disrepair claim against the landlord, which was decided by the Court. In the course of the disrepair claim and court proceedings, the resident had the opportunity to put to the court his argument that he should not have been liable for rent at the property while not living in it and that the landlord should reimburse him for the money spent on private accommodation following the two-week stay in the alternative accommodation provided.
18. Moreover, as part of the proceedings, the solicitor for the landlord and solicitor for the resident would have negotiated as to the level of damages to be awarded (and any deductions to be made), with the final amount ultimately being decided by the court.  The court order has been signed by both parties, which agrees on a full and final settlement of £9,000 damages, with any arrears off-setting the awarded amount.
19. It is not the role of the Ombudsman to assess and award damages; this is a matter for the courts.  In this case, the court has considered the matter and assessed and awarded an amount which was agreed by both parties. The Ombudsman is unable to go behind this decision.
20. Furthermore, the resident is seeking to raise matters which he has previously had a chance to raise as part of those legal proceedings.  It is for both of these reasons, that the complaint is outside of the jurisdiction of this Service by virtue of paragraph 39(h) of the Scheme.  Should the resident wish to pursue the matter further, he may wish to seek further legal advice.
21. The Ombudsman would like to take this opportunity to apologise for the length of time that it has taken to confirm our jurisdiction in respect of the complaint.  Jurisdiction is a complex matter and to come to a conclusion on the complaint a thorough assessment the facts had to be completed first.