Kingston upon Thames Council (202014709)

REPORT

COMPLAINT 202014709

Kingston upon Thames Council

13 May 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 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 assertion that the resident is in rent arrears and the resulting deductions from her benefits, with the landlord having informed the Department of Work and Pensions (DWP) that rent money is owed.

Background and summary of events

Background and policies

2. The resident commenced on an introductory tenancy with the landlord, at the property, on 25 November 2019.
3. The resident had previously lived in temporary accommodation and the move to the property meant that rent would no longer be paid directly by Housing Benefit but would form part of her Universal Credit payment, which the resident would need to arrange to pay the landlord herself.
4. Section 8 of the landlord’s ‘Rent Arrears and Income Collection Policy’ states that it will work with residents who are in arrears, making arrangements to clear the debt and may offer signposting to debt management or other agencies who may be able to assist with financial advice or problematic debt.
5. The ‘Rent Arrears and Income Collection’ procedural manual sets out the steps the landlord may take in seeking to recover arrears.  Section 10 of the guidance describes actions including the landlord contacting the resident to discuss the arrears and offer assistance or referral.
6. Section 12.2 of the same document states that it is the DWP who determine the instalment amount to pay back the arrears.
7. Section 10 of the same policy states that the landlord can apply to Universal Credit for direct payments to be made to it for rent arrears.
8. The landlord has a two-stage formal complaints procedure, following an informal ‘initial resolution’ stage, whereby it aims to investigate and respond to complaints within 15 working days at both formal stages.  Where there are exceptional circumstances, however, this may not be possible and a complaint response may take longer.

Summary of events

9. On 19 December 2019 the landlord met with the resident to explain the change in procedure regarding her rent payment and to help her with arranging this. The resident would need to set up a standing order to pay the landlord rent, as the rent was now forming part of her universal credit payment and not being directly paid by housing benefit.
10. This meeting followed the landlord sending the resident a letter informing her that her rent account was in arrears on 16 December 2019.  At this meeting in December, the resident agreed to set up the standing order but did not then do this.
11. Correspondence commenced between the landlord and resident regarding the arrears and an appointment was made for 9 January 2020 to discuss and further explain the situation and to find a way forward.
12. The resident cancelled the scheduled meeting for 9 January 2020 and the landlord sent a further notice that she was in arrears.  The resident also cancelled the rescheduled meeting, due to mental health difficulties but agreed to a meeting on 22 January 2020.
13. On 22 January 2020 the resident attended the meeting to discuss and help her with the arrears but she arrived 30 minutes late which meant that the meeting could not go ahead as there were other appointments scheduled.
14. On 4 February 2020 the landlord issued a Notice of Seeking Possession (NOSP) due to the arrears.  There is no further information as to this intended action, however, two months later, on 3 April 2020, the landlord tried to call the resident to again discuss the rent arrears but was unable to make contact. The landlord asked the resident to contact it and said that if she did not, it would assume she did not want help with the situation.  
15. On 11 and 18 May 2020, 1 June 2020 and 20 October 2020, the landlord sent the resident further ‘notification of arrears’ letters. The resident disputed she had arrears on her account and expressed her dissatisfaction with the landlord’s handling of the situation. 
16. On 30 October 2020 the landlord emailed the resident advising that in sending her a rent statement, it was simply doing the same as it did with all residents and this was not a demand for payment.  In terms of the arrears on the resident’s rent account, it explained how these were accrued and referred to this previously having been explained.
17. The landlord issued a warning letter to the resident on 5 November 2020, due to the language and tone of some of the resident’s emails to it.
18. On 26 January 2021 the resident emailed the landlord continuing to express her dissatisfaction with its handling of her rent account.  She did not believe she was in rent arrears and she was dissatisfied with the amount being deducted from her benefits as a result of the landlord advising the DWP that she was in arrears. 
19. On same date, landlord responded, explaining the situation again and advising that it has no control as to how much the DWP deduct from her benefits and suggest she contact the DWP to discuss the matter.
20. Correspondence continued and on 9 February 2021, the landlord issued a stage two response to the complaint.  The complaint was not upheld.  The landlord explained how and when arrears commenced on the account, which was from when she moved into the property in November 2019. The landlord explained that the resident did not make rent payments to it between November 2019 and December 2020, which she was required to do because her universal credit included a payment for housing costs which she was required to pass onto the landlord. 
21. In its response, the landlord included statements of payments made to her for November and December 2019 and referred to numerous conversations with her having been, as well as an email from the resident on 2 January 2020 confirming that she had not set up a standing order to pay her rent as she should have done. 
22. The landlord further explained that the DWP had been making rent payments from 4 February 2020, however, this did not address the prior arrears which remained on the rent account and further, that the DWP did not start making payments towards the arrears until 6 January 2021. 
23. Finally, the landlord explained that the amount of arrears fluctuates each week because rent is applied weekly and payments not aligning with this, which means that figures will go up and down.  As a way forward, the landlord recommended the resident contact the DWP to discuss her income and to have the situation assessed. 

Post complaint

24. Following a further email from the resident, on 10 February 2021, the landlord emailed her explaining again that her rent arrears were for reasons including a shortfall in payments by the DWP for “several months” up until 18 August 2020 and the fact that rent payments are required in advance and universal credit is paid in arrears. 
25. It also advised that the amount of arrears it notified the DWP of were correct, explaining how it reached this conclusion and advised by how much the account remained in arrears and the date at which these would be paid off.

Assessment and findings

26. The resident is obliged to pay her rent in accordance with the terms of her tenancy agreement, whether directly or through a third-party agency such as the DWP.  The manner in which rent was paid to the landlord changed when the resident moved from her temporary accommodation to the current property, meaning that rather than the rent automatically being paid for her, she was paid increased benefit (via Universal Credit) and it became her responsibility to set up a standing order in order to pay the landlord rent herself.
27. Whether there was a lack of communication, miscommunication or misunderstanding about the situation at the very outset and in the early stages of the tenancy, the landlord appropriately made the situation clear on a number of occasions, both verbally and in writing.
28. Having made the situation clear and still not having received rent payment and the increasing arrears this situation created, the landlord was entitled to notify the resident that it had not received the rent and remind her of her obligations to pay it.  In acting quickly, in accordance with its policy and procedural guidance, the landlord was seeking to resolve the situation, so that the rent account would be up-to-date, also ensuring that debt by way of rent arrears, did not accumulate to an unmanageable level.
29. It is understandable that the letters reminding the resident to pay her rent, which are formal in nature, were upsetting to the resident, however, the landlord operated within its standard protocol and there was no singling out of the resident in this regard.
30. The landlord also operated within the scope of its policies and procedures in advising the DWP that there were arrears on the rent account.  The DWP thereafter, calculates the amount that it will deduct from the resident based on her financial circumstances – this is not something the landlord is able to decide.  The landlord appropriately referred the resident to the DWP to discuss the situation and to have her financial situation assessed if she believed the amount being deducted was unaffordable; there was nothing the landlord could have done to have changed this.
31. The landlord offered to support the resident with the situation by meeting with her in December 2019 and its later offers to meet, which were subsequently cancelled or arrived at late by the resident.  The landlord also tried to telephone the resident and write to her offering to meet however, invitations were largely not taken up.
32. The resident has referred to mental health as being the reason for cancelling some of the meetings in January 2020 and documentation provided to this Service makes reference to both physical and mental health conditions the resident is living with, which the Ombudsman does not doubt have impacted her ability to engage, particularly in respect of having face to face meetings.
33. It remains the case however, that the resident is obliged to pay her rent and arrears and the landlord and it is undoubtedly important also, for the resident’s peace of mind, that this situation is resolved. The landlord arguably missed an opportunity to discuss any specialist support with the resident or to discuss the possibility of her arranging a payment plan with it directly, however, this is in the context of non-engagement and a refusal to accept that monies were owed.
34. The landlord inspected the rent account and worked out how the arrears had been accrued and tried to explain this to the resident on a number of occasions.  No evidence has been provided to this Service to indicate that the landlord is incorrect in its calculations or explanations of the arrears and while an unfortunate situation, that there is now additional monies on top of the rent to be paid, this is not a punitive measure on the part of the landlord, but rather, monies owed from living in the property and the resident not paying the rent when she should have done.
35. Finally, in terms of the landlord’s complaints handling, the landlord corresponded frequently and appropriately with the resident in respect of this situation and within the timeframes set out in its complaints policy.  The landlord does not seem to have provided a stage one response, although it appears to possibly have considered its October 2020 response as its stage one reply to the complaint.  A recommendation has been made in this regard; it is important when responding to a complaint, stages of the process and routes of escalation are transparent and made clear.

Determination

36. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the complaint.

Reasons

37. There was no maladministration insofar as the landlord explained to the resident that there would need to be a change to the way she paid her rent and explained how to do this. 
38. Having not paid her rent and disputing money was owed, the landlord checked the rent account and explained to the resident on a number of occasions why the arrears had arisen and asked her to pay her rent, reminding her of her obligations, which it was entitled to do.
39. The landlord’s informing the DWP of the arrears was standard practice and in accordance with its policies and procedures.  The amount deducted is not a decision made by the landlord, but by the DWP and the landlord appropriately referred the resident to this agency to discuss affordability if the amount deducted was problematic. 

Recommendations

40. The landlord is recommended to review its complaints handling procedures, with the purpose of ensuring that a complaint response clearly states the stage it is at and escalation procedures.
41. The landlord is recommended to offer to discuss the situation with the resident.  Any such discussion should attempt to make clear the rent account, monies owed, next steps and be documented thereafter and a copy of this provided to the resident.  The landlord to consider whether other agencies may be appropriate to direct the resident to in terms of assistance with financial and debt advice, that it hasn’t done already.