Clarion Housing Association Limited (202100891)

REPORT

COMPLAINT 202100891

Clarion Housing Association Limited

27 January 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 complaint is about:
1. The landlord’s response to the resident’s concerns about its handling of her personal data and her concerns about data breaches.
2. The landlord’s response to the resident’s concerns, following the breakdown of her relationship and the subsequent Family Court proceedings, about her occupation of the property.

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.
After carefully considering all the evidence, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:
1. The landlord’s response to the resident’s concerns about its handling of her personal data and her concerns about data breaches.
The Ombudsman understands that the resident is unhappy that the landlord has potentially breached Data Protection legislation with regards to information it may have shared with her ex-partner during Family Court proceedings. The resident considers this to be a breach of the landlord’s obligations under Data Protection legislation to safeguard her personal information. The Ombudsman also understands that the resident has referred the matter to the Information Commissioner’s Office.
Paragraph 39(m) of the Housing Ombudsman Scheme states that the:
1. ‘Ombudsman will not investigate complaints which, in the Ombudsman’s opinion (…) fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
The Information Commissioners Office (‘ICO’) has the jurisdiction to consider complaints about potential breaches of data privacy. As the ICO is the proper complaints-handling body that deals with such matters, the complaint about the resident’s concerns about disclosure of her personal data and her concerns about data breaches, is outside the jurisdiction of this Service to consider in accordance with paragraph 39(m) of the Scheme because such complaints fall within the jurisdiction of the ICO.
This report will therefore only address the complaint about the landlord’s response to the resident’s concerns in relation to the Family Court proceedings.

Background and summary of events

At the time of the complaint the resident was an assured tenant of the landlord and the tenancy was in her sole name. The tenancy agreement listed the occupants of the property as the resident and three children. The Ombudsman understands that at the time of the complaint, the resident’s partner was also residing at the property, but he was not named on the tenancy agreement.

Policies, procedures, and agreements

Domestic Abuse policy:

This sets out the standards the landlord will aim to follow when dealing with cases of domestic abuse, which include:
1. adopt a victim-centred approach to domestic abuse and ensure that employees are well-trained and work collaboratively with appropriate agencies; record all reports of domestic abuse, subsequent actions and contacts; participate in local Multi Agency Risk Assessment Conferences (MARAC) and implement any actions or recommendations that arise.

Allocations policy:

This sets out that the landlord has discretion to consider a management transfer in exceptional circumstances where there is written evidence provided by the Police or other relevant agencies to show a tenant is experiencing:
1. serious anti-social behaviour or harassment that puts their life at risk or;
2. domestic abuse that is putting or is likely to put the tenant or a member of their households’ life at risk.

Management Transfer policy:

The eligibility criteria states that the landlord can only consider a management transfer if it has properties available for transfers under its nomination agreement with the local authority. If it does not retain any such properties, then the landlord will refer the tenant to the local authority for its consent for a transfer.
Management transfers should only be considered if the Police confirm in writing that there is a serious risk or threat to the tenant or their family that means it is no longer safe for the tenant and their family to continue living at the property and there is a realistic chance of a suitable property becoming available quickly. In serious risk cases, the tenant may need to look at alternatives such as applying with the local authority, other housing providers and the private sector.

Summary of events

The landlord’s records are not clear, but it has said that it first became aware of a potential issue with the tenancy on 11 September 2020. Its records do not confirm the exact nature of the problem, only that it attempted to contact the resident to get further details but it was unable to get a hold of her and the case notes show that ‘no contact was made with the tenant due to failed attempts tenant has changed her number’.
The landlord was notified (the records are unclear as to by whom) that a MARAC multi-agency domestic violence meeting had been arranged on 25 September 2020. This meeting was arranged by the resident’s domestic violence advocate and the landlord attended this meeting. Neither the landlord nor the resident has provided any evidence of the notes or outcome of this meeting.
The landlord’s internal email on 1 October 2020 shows that it was informed by the resident yesterday of a domestic violence incident. The ASB officer had met with the resident and completed an action plan. It was noted that due to the domestic violence no information was to be shared with the resident’s partner. The notes show that the resident had said her partner had been removed from the property by the Police.
On 5 October 2020 the emails between the landlord and the resident’s support worker (Domestic Abuse Officer) confirm that the support worker asked the landlord to try and assist the resident following a court order removing her from the property.
In response to a request from the resident, the landlord issued her with a tenancy confirmation letter on 5 October 2020 which confirmed that the tenancy was in her sole name, which she could use at her next hearing.
On 8 October 2020 the landlord updated the resident as follows:
1. The officer had discussed the resident’s case with his manager.
2. The Exclusion Order that had been served on the resident was issued by the Family Court and the landlord could not contest the Order.
3. It confirmed that this was a matter of legal proceedings and it was for the resident, and her legal representatives and advocate to advise her how to challenge the court order.
4. It had issued a tenancy confirmation letter and a copy of her tenancy agreement which should help her to show that she was the legal tenant of the property and that it was her principle home.
5. It maintained that it was not in the process of transferring the tenancy into her partner’s name and it advised the resident to continue to liaise with her advocate and her legal team in preparation for the next court hearing where she can ask for the exclusion order to be varied.
On 13 November 2020 a further MARAC meeting was held, which the landlord attended and confirmed its position was that the resident’s legal team and advocate need to pursue a challenge to the court order to have it varied or removed so as to allow the resident to return to the property. It confirmed that the resident was the sole tenant of the property.
The landlord’s records show that on 25 November 2020 it was contacted by the resident’s partner who said that he was now living at the property and the resident was no longer staying there.
On 5 December 2020 the resident contacted this Service, and she was advised to lodge a formal complaint with the landlord and complete its complaints process. A complaint was then logged by the landlord on 7 December 2020 about the landlord’s lack of assistance in helping the resident to remove her partner from the property and allow her to move back in.
On 11 December 2020 the resident contacted the landlord and gave further information about the background to her present situation. The records show that the resident had mentioned domestic violence and that she was presently involved in MARAC meetings.
The landlord’s records on 14 December 2020 show that the resident’s case was being handled by a specialist as it was a particularly complex case. It had been liaising with the resident’s advocate and it had explained to the resident that it could not overturn the court order and that this was a legal matter. It would continue to assist where it could e.g. by attending further MARAC meetings but it was not able to take any further action.
On 15 December 2020 the landlord spoke to the resident who requested that she wanted her partner to be removed from the property, and her tenancy ended and for her to be re-housed elsewhere.
The resident chased the landlord again on 21 December 2020 seeking an update. There are no records to show what happened at this time.
On 18 January 2021 the landlord issued its Stage 1 response:
1. The main complaint issues were noted as Data Protection and Housing Situation (tenancy annulment, rent arrears, removal of partner).
2. Data Protection – this was being investigated by the Data Protection team and a full separate response would be provided.
3. With regards to the resident’s present housing situation, it was confirmed that the resident no longer lived at the property following an exclusion order issued by the Family Court and that her partner was presently residing there with the children subject to ongoing court proceedings.
4. The landlord had given the resident advice on how to end her tenancy, but it stressed that, this was a very serious step and she should take legal advice before making any decision. Especially given that the exclusion order was temporary and a further court hearing was due in March 2021.
5. It explained that as the resident was sole named tenant on the tenancy agreement, she was technically still contractually responsible for any arrears until such time as the tenancy is amended following the court judgement.
6. It addressed an issue about the landlord’s staff liaising with a social worker who she felt was colluding with her partner.
7. With regards to the landlord removing the resident’s partner from the property, it explained that as the partner had been granted a right to stay in the property with the children following a Court Order, the landlord could not remove him. However, it said it would review the situation at the next MARAC meeting.
8. In conclusion it accepted that the resident’s case was complex and involved sensitive issues, as such, the landlord would be guided by the MARAC recommendations and it would co-operate fully with this process. It said that its complaints process was not the appropriate forum to respond to these issues. In any event, it said it had offered appropriate advice within the terms of its remit considering the legal proceedings that were currently ongoing and the directions of the MARAC forum. The landlord also offered £50 compensation in recognition of the delay in responding to the complaint.
The resident requested that her complaint be escalated on 18 January 2021. She also reiterated her concerns about the data that had been shared with her partner incorrectly and that he had attempted to transfer the tenancy into his name. She asked that the landlord remove him from the property.
The records show that a further MARAC meeting occurred on 18 January 2021. One of the points raised within this meeting was that both the resident and the landlord had been left in a difficult situation due to the Court Order prohibiting the resident from staying at the property. It was also noted that the Police confirmed that they did not have enough evidence to consider any action against the resident’s partner in respect of the domestic violence allegations.
On 25 January 2021 the landlord issued the resident with another tenancy confirmation letter to use at Court which explained its position regarding the assignment of the tenancy.
The landlord acknowledged the complaint escalation request on 5 February 2021 and also apologised for the delay.
On 8 February 2021 the landlord emailed the resident to explain that it will leave it to the Court to decide the matter and it will abide by the Court’s decision. It explained that the resident did not meet the threshold for a management transfer and it also explained what would happen if she were to relinquish the tenancy.
On 12 February 2021 the landlord’s records show that it spoke to the resident who confirmed that she had attended a court hearing yesterday and that the tenancy transfer to the partner had been denied at this time. It was decided that Social Services would review the temporary care of the children and it was left to the resident and her partner to agree between themselves who was to stay in the property. The resident also gave some background information about the exclusion order and that it was partly due to the court finding that she had locked the children out of the property when she decided to change the locks.
On 18 February 2021 the resident’s legal team emailed the landlord to ask whether or not it would support the resident’s partner’s application at court to transfer the tenancy into his name. The legal team sent a chaser on 22 February 2021 and the landlord responded the next day saying that this was a matter for the court to decide and that it would simply abide by the court’s decision.
On 12 March 2021 the landlord issued its Stage 2 final complaint response:
1. It summarised the Stage 1 findings and the resident’s complaint escalation points and her requested resolution. It explained its position regarding the data protection issues and said it was satisfied that there were no breaches.
2. With regards to a management transfer, it said that it had no record of any formal request from the resident and it had found no notes or correspondence about this. The criteria for a management transfer had not been met as there was no supporting evidence from either the Police or MARAC to indicate that the resident’s situation met its criteria. It acknowledged that the resident was in a very difficult situation, but it was not in a position to offer her a transfer.
3. With regards to the resident’s request to remove her partner from the property, the landlord explained that it was bound by the terms of the court order. The landlord sought appropriate advice from a specialist consultant, and the advice was that it should be left in the hands of the court as it was privy to all the factors affecting the case, not just the housing situation.
4. The landlord had sought to assist the resident where possible and had provided advice, and documentation where necessary. It had attended the MARAC meetings and provided its input and was guided by any recommendations. It had liaised with the resident’s advocate and had provided advice and guidance.
5. It did however acknowledge that some of the content of its Stage 1 response ‘was not as clear as it could have been’ and this was partly due to a misunderstanding between the complaints team and the data protection team for which it apologised.
6. In conclusion, it reiterated that it was not able to offer a management transfer, but it said it would review this subject to any further evidence being made available. It reaffirmed that it would continue to support the resident as far as it was able to within the confines of its policies and procedures and it would continue to work collaboratively with the other statutory agencies and the resident’s advocate.
The landlord’s records show that it separately offered the resident a further £50 compensation for delay in issuing the Stage 2 response.
On 12 March 2021 the resident contacted this Service as she was unhappy with the landlord’s response. She said that there had been communication failures and the landlord had not supported her.
At the time of this report, the Ombudsman understands that the resident is no longer a tenant of the landlord and that the tenancy was granted to her partner through a property transfer order from the Family Court.

Assessment and findings

The Ombudsman’s role includes an assessment of whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case.
This report will consider the landlord’s response to the resident’s concerns following a court decision to exclude her from the property following the breakdown of her relationship with her partner. The key issue raised by the resident relates to her request for the landlord to remove her partner from the property. When considering the landlord’s handling of this matter, the Ombudsman is guided by the landlord’s policies and procedures and our own Dispute Resolution Principles, which are, ‘be fair – treat people fairly and follow fair process; put things right and learn from outcomes’.
Before going any further, it should be noted that, whilst the landlord has provided enough evidence to be able to reach a determination on the complaint, the landlord is reminded of the need for robust and thorough record-keeping, especially when dealing with complex, nuanced cases such as this. There is a lack of detailed supporting evidence in this regard.
Looking at the facts and the available evidence, in terms of the landlord’s response it can be seen that, overall, it has demonstrated that it responded appropriately and in a reasonable manner. There is nothing to suggest that the landlord failed to grasp the seriousness of the resident’s situation. The evidence shows that it liaised appropriately with the resident and provided advice and guidance about what it could and couldn’t assist the resident with.
The landlord managed the resident’s expectations from the outset and consistently explained why it could not help the resident in the way that she wanted it to. Ultimately, the resident wanted the landlord to remove her partner from the property, and the landlord handled this appropriately by explaining that the decision was a legal issue and the landlord could not simply override a court order which excluded her and granted her partner the right to stay in the property.
The landlord has shown that it duly considered what options it had available in trying to challenge the court order, but in the end, the expert advice it had obtained said that the landlord did not have grounds to challenge the order. Furthermore, as part of the MARAC meetings, the Police also stated that they would be complying with the order of the court. As such, whilst the resident would naturally be disappointed with this decision, the landlord’s stance was reasonable and based upon the legal advice it obtained.
Although it could not provide practical assistance in this regard, the landlord continued to monitor the situation and it participated in the MARAC meetings and continued to liaise with all relevant parties. It also explained the options available to the resident and correctly highlighted that any actions taken by the landlord would need to be guided by the MARAC professionals and the judgement of the court and that the resident needed to get her own legal advice.
With regards to the issue of a possible management transfer, there is limited evidence available in this regard. Looking at the facts and the evidence that is available, the landlord has the discretion to consider a management transfer if it has evidence of domestic abuse that is putting the tenant’s life at risk. In this case, the landlord has demonstrated that whilst the resident’s situation was undoubtedly distressing, it had not been provided with any evidence from the Police (or any of the other professionals involved in the case) to demonstrate that the resident met the required criteria for a management transfer.
Looking at the matter on the whole, ultimately, the landlord has taken the view that it could not take action to remove the partner from the property and the resident did not meet the necessary criteria for consideration for a management transfer. Both these outcomes would naturally be a disappointment to the resident, and the landlord has sought to appropriately acknowledge this in its complaint investigations. The Ombudsman takes the view that the landlord has tried to help the resident as best it could within the difficult circumstances she found herself in following the court order.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns following the breakdown of her relationship and the subsequent Family Court proceedings about her occupation of the property.

Reasons

The landlord has shown that it responded appropriately to the resident’s concerns and it showed empathy and understanding and provided advice, guidance and assistance to the resident within its limited scope of influence.