Optivo (202106576)

REPORT

COMPLAINT 202106576

Optivo

10 March 2022

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 resident complains about:
1. The landlord’s handling of a Discretionary Housing Payment (DHP) application;
2. text messages sent by the landlord;
3. historical rent arrears;
4. increasing rent arrears, and;
5. complaint handling

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.
Paragraph 39 (a) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a landlord’s complaints procedure, unless there is evidence of a complaint handling failure, and the Ombudsman is satisfied that the landlord has not taken action within a reasonable timescale. This is so that a landlord has the opportunity to formally address a complaint, and put right any identified failings, before it is considered by the Ombudsman.
Paragraph 39 (d) of the Scheme states that the Ombudsman would not consider complaints that were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the landlord’s complaints procedure.
Paragraph 39 (e) of the Scheme states that the Ombudsman would not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.
In his complaint to this Service, the resident notes that despite paying his rent each month, his rent arrears are increasing, but the landlord has not explained why. This issue was not raised in the resident’s complaint to the landlord. The complaint that the resident made to the landlord was focused on his contention that due to failures on the part of a staff member his DHP application was refused. No formal complaint response was therefore provided regarding rent arrears increasing. As such, this matter has not exhausted the landlord’s complaints procedure, and therefore cannot be considered in this investigation, in line with paragraph 39 (a) of the Scheme. Should the resident wish to pursue his concerns about increasing rent arrears, he may want to conder making a formal complaint to the landlord.
The resident has also complained that £4995 in arrears were added to his rent account without justification around fifteen years ago, which he became aware of around 2013/14, and would like these to be cleared. There is no indication that the resident raised this as a formal complaint with the landlord within 6 months of the matters arising. If he did, he did not bring this to the attention of the Ombudsman within 12 months after it exhausted the member’s complaints procedure. As such, this complaint falls outside of the Ombudsman’s jurisdiction, in line with Paragraphs (d) and (e) of the Scheme.

Background

The landlord’s complaint policy (as was in place at the time of the matters complaint about) states that if a complainant was unhappy with its stage one decision, they could ask for the complaint to be reviewed. The landlord would then consider whether to escalate the matter. If it decided not to, it would explain the reasons why. These reasons might be, for example, the outcome won’t change, or it had already complied with the request(s).

Summary of events

On 1 October 2020 the resident and a landlord staff member completed a DHP application, which was declined (it appears that this may have been due to documentation that was required not having been submitted). A three-way conversation took place between the resident, the staff member, and the local authority (LA) on the 9 October 2020, during which the LA confirmed that it would reconsider if the resident provided the missing documentation to support the application by 1 November 2020. The resident sent the staff member his supporting documents, and the staff member emailed these to the LA on 16 October 2020. The staff member subsequently chased up the LA and was advised that the DHP application was declined.
The resident made a stage one complaint on 17 December 2020, saying that the staff member had not submitted his documentation correctly. He also complained that the landlord was sending him text messages regarding Universal Credit (UC) which he said it had no right to do and was illegal.
On 27 January 2021 the landlord provided its stage one response. It said that the staff member spoke with the LA on 18 December 2020, and it had confirmed receipt of the additional documents sent on 16 October 2020. The LA had apologised as no action was taken when it received the email, and therefore said that it had referred the application to a manager for review. The staff member contacted the LA again for an update on 5 and 14 January 2021, and was informed that the application had been refused.
The letter also stated ‘I understand you wanted to be updated on your DHP application by email. I have asked for our system to be updated to indicate your preferred method of communication is email.’
On 4 February 2021 the resident sent a stage two escalation request, saying that he did not accept the landlord’s version of events. He said that he asked the staff member on 1 October 2020 to stop the text messages that he was getting sent. He also noted that he completed the DHP application on this date, and during the subsequent three-way conversation the LA stated that it was no longer the case of qualifying for DHP, but rather, how much he would be awarded.
The resident said that the LA had requested copies of the resident’s UC documentation and his Tenancy Agreement (TA). The staff member said that they already had a copy of the TA, and so the resident just sent them the UC documentation, and a consent note, to forward to the LA. The resident said that the staff member later confirmed that they had sent the information to the LA.
The resident complained that the staff member should have contacted the LA to confirm receipt, but did not, stating ‘Your officer FAILED to ensure that the documents were sent, if they were properly sent, and if they were received.’ The resident said that he called the LA on 16 December 2020 to chase up the application, and was told that the documents requested on 9 October 2020 were not received, and as such the application was closed. The resident asked the landlord for evidence that supported its stage one response’s version of events.
The resident also referred to historical arrears of £4995 he said were added to his account over 15 years ago. The resident said that he had been in touch with the landlord regarding this over two months ago providing historical information, but had not had a response.
In its review request response letter dated 24 January 2021 the landlord noted that it had spoken with the resident, who had explained that the reason he had requested a review was because he believed that the landlord was responsible for the LA refusing his DHP application as it failed to provide the necessary documents by the deadline. As an outcome, the resident wanted the landlord to compensate him by removing the arrears from his rent account. The letter then explained that the landlord had decided not to escalate the complaint to review for the following reasons:
1. The staff member provided all the necessary forms and documents to the LA within their timescales.
2. The landlord’s actions had no impact on the LA’s decision to refuse DHP, rather the resident did not meet the qualifying criteria.

Assessment and findings

When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution: be fair – treat people fairly and follow fair processes; put things right, and; learn from outcomes.
The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right.’ If not, order/s will be made to provide a remedy for the resident.
In his complaint to this Service, the resident has explained that he is dissatisfied with the landlord’s decision not to escalate the complaint to stage two, and states that it failed to follow its complaint procedure. The resident has also said that the landlord did not provide any explanation, evidence or justification regarding a failure of the staff member to provide the correct information to the LA in support of the DHP application. As an outcome the resident seeks the removal of his rent arrears.
The resident recalls that the staff member said that they already had a copy of his TA, and so he just needed to send in the UC information. The landlord’s contemporaneous records however note that the resident was to provide the UC documentation and the TA, which were both required, and that the staff member would then forward these to the LA. It is not possible for the Ombudsman to determine whether the resident’s recollection, or the landlord’s record is correct here.
There is a copy of the email dated 16 October 2020 that shows that the staff member did email the LA with attachments, which they listed as UC breakdown (and a consent letter from the resident). The staff member said in this email, ‘Kindly confirm if there are further documents required to progress the application as I will be more than happy to provide them.’ No TA was attached.
The Ombudsman can conclude then that the TA, which was required for the application, was not sent. The records then show that the staff member chased this up with LA on 18 December 2020, and was told that the 16 October 2020 email and attachments had been received, but had not been actioned. The LA was therefore referring the case to head office and advised the staff member to chase up if they did not hear back.
The staff member did so on 5 January 2021 and was advised that all documents had been received, and the case had been escalated to a manager to look into. The staff member chased again on 14 January 2021 and noted that the LA said that the claim had been refused on 2 November 2020 as the TA had not been provided, explaining that the resident had been informed of this when he called the LA on 17 December 2020.
This information all accords with the information that the landlord provided in its stage one response, other than the fact that the application was declined due to the lack of TA.
The resident has provided a transcript of a telephone call he had had with the LA on 3 March 2021 that he obtained via a Subject Access Request. He states that following this he informed the landlord that as from April 2021, he considered his rent ‘…at a Balance of 0 (zero) arrears, as now they have made me losing a chance of a DHP from the Council, which I was sure of getting as I was awarded a council tax support following an application by myself during the same period.’
The transcript of the call to the LA shows that the LA advised that it had received the DHP application on 1 October 2020, and then written to the resident on 2 October stating that he did not qualify for DHP, and in order to consider the request he would need to provide his TA and all pages of his UC within a month. On 9 October 2020 the LA spoke with the resident and the landlord staff member, and following this, on 16 October 202, the staff member emailed the landlord the UC documentation, but no TA.
This information also accords with the information in the landlord’s own records, and shows that the application was not accepted due to the lack of TA.
The Ombudsman must therefore consider whether the landlord was at fault for the TA not being supplied: The records show that the resident was to provide at least some of the docs required and it was agreed that these would be forwarded to the LA by the landlord. Both parties were aware of what documents needed to go to the LA, and so it was a failing that the landlord did not send on the TA; either by noticing that it had not been provided by the resident to forward on, or that it had not obtained a copy from its own records.
While it is not disputed that the lack of TA was the reason given by the LA for the declined application, it cannot be known whether an application with the TA would have been successful. It is acknowledged that the resident considers that he would have been awarded DHP had the staff member submitted all information required, having explained that in the same period he applied for and received council tax support. However, being eligible for non-discretionary council tax support does not confirm that the resident would have been granted DHP. There is no statutory right to DHP, and the LA decides on a case-by-case basis whether to grant this and, if so, for what amount and for how long. It considers each application individually and the reasons that the claimant provides for requiring the payment.
In this case, the resident had stated that he was applying for DHP as his work hours had been reduced by Covid-19 and he required help with his rent arrears. It is not possible for the Ombudsman to determine whether his application would have been granted, had the TA been provided.
It is evident that the resident was made aware of the outcome of the application on 17 December 2020, several weeks before the landlord (who, to its credit had asked the LA to contact it if further information was required, and had actively chased the outcome of the application), but it is not known whether the resident was able to appeal the decision made by the LA at the time he was made aware of the outcome, or submit a fresh application, and if so, why this didn’t happen.
Overall, the landlord’s failure to provide the TA to the LA caused distress and inconvenience to the resident because it at least contributed to the application being declined. However, it cannot be said that had the TA been provided, the application would have been successful, and that serious adverse effect resulted from the failing. Neither would DHP have cleared the significant arrears on the rent account. Further, while the landlord’s omission of the TA was a failing, it did ask the LA to say whether any documentation was missing and did not receive a response to this enquiry.
Regarding the text messages, these seem to be from the landlord reminding the resident to make the correct rent payment when he receives his UC. This is not unreasonable in itself, and it is unclear why the resident feels that such messages are illegal. It is also noted form the copies that the resident had provided that there appears to be an option to ‘opt out’ of receiving the messages, so the resident had the opportunity to do this if the messages did not suit his preferences. No failing is found here.

Complaint handling

It was unreasonable that the landlord declined to escalate the complaint. While the landlord may have considered that the ‘outcome would have been the same’, this may not have been the case: Had it carried out a further investigation and sought to provide the proof that the resident had requested, it should have been able to identify that the stage one response was incorrect in stating that all documentation had been provided. By not considering the complaint further, the landlord missed the opportunity to recognise what had gone wrong. As it was, its letter declining to escalate to stage two stated that the staff member provided all the necessary forms and documents to the LA.
Further, the stage one response appears to have misunderstood the concern that the resident was raising about the text messages: He was not asking to be emailed rather than contacted by telephone, rather, he was questioning the legitimacy of the landlord sending him text messages about UC. Again, had the matter been escalated, this may have been picked up. The landlord missed the opportunity to fully understand this complaint and address the resident’s concerns.
This demonstrates the risks of having what is essentially a single stage complaint procedure, with the missed opportunity to ‘look again’ at an issue. The landlord has since revised its complaint procedure, and this now sets out a two-stage process. While this goes some way to ‘putting things right’ and improving its overall complaint handling, it does not wholly remedy the frustration caused to the resident for the failings in the handling of his complaint. Therefore, an order is made below.
Finally, the landlord provided no response to the resident’s comments about the £4995 arrears in his stage two request.

Determination (decision)

In accordance with section 54 of the Scheme there was:
1. Maladministration in the landlord’s handling of the DHP application.
2. No maladministration in the sending of text messages.
3. Maladministration in the complaint handling.

Reasons

It was a failing that the landlord did not send on the TA. This led to frustration to the resident, and time and trouble taken in pursuing the matter. The failings in the complaint handing compounded this, with the landlord missing the opportunity to recognise what had gone wrong, and fully address the resident’s concerns.
It was not maladministrative to send text messages.

Orders

Within one month of the date of this report, the landlord should pay the resident a total of £275, comprised of £175 for the frustration, time and trouble caused by the failings with the DHP application, and £100 for the frustration, time and trouble caused by the failings in the complaint handling.

Recommendation

Staff should be reminded to check all necessary documentation has been included when assisting with DHP applications.