Midland Heart Limited (202120766)

REPORT

COMPLAINT 202120766

Midland Heart Limited

16 May 2023

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:
   1. The resident’s husband being added to the tenancy agreement.
   2. The landlord’s handling of the associated complaint.

Background

2. The resident is an assured non-shorthold tenant of the landlord at the property, which is a house.
3. The resident was a sole tenant with the landlord in her previous property. She lived with her husband and children. In April 2020, the police issued a ‘Threat to Life Order’ to the resident’s husband. The landlord authorised an emergency move for the resident, her husband, and children. The landlord offered the resident a property on 4 May 2020. The resident accepted the property.
4. On 18 May 2020, the resident and her husband viewed the property. The landlord said that the resident requested the tenancy at the new property to be a joint tenancy with her husband. The resident disputes saying this to the landlord. On 18 May 2020 both the resident and her husband signed a joint tenancy agreement for the property. The new tenancy commenced on 25 May 2020.
5. In January 2021, the landlord warned the resident and her husband over how often they contacted it. The landlord said that some of the comments towards the landlord’s staff were racist and derogatory. The landlord then took legal advice. The landlord obtained a legal injunction against both the resident and her husband. The injunction specified how often and by what method they could contact the landlord in the future. The resident complained to the landlord during this time. She stated that the landlord had deliberately added her husband to the tenancy agreement without her consent. The landlord also failed to consider her husband’s previous criminal convictions when adding him to the tenancy agreement.
6. The landlord’s stage one complaint found no service failure towards the resident. The landlord explained in reaching its decision that it had no records that the resident had raised any previous concern about her husband being on the tenancy. It also stated that its staff had been present when both the resident and her husband signed the new tenancy agreement. Again, the resident raised no concerns about her husband being on the tenancy at this time.
7. On 4 November 2021 the resident requested the escalation of her complaint. The resident stated the landlord had not investigated her concerns, breaching its own policy. She complained that the landlord had granted her husband a joint tenancy knowing his criminal background, which included serious criminal convictions. The resident also accused the landlord of changing the tenancy without her permission.
8. At the final stage of the landlord’s complaint process, it awarded the resident £30 compensation. This was for not answering the resident’s complaint in full in its initial response. It did not uphold the resident’s complaint about granting a joint tenancy to her husband.
9. The resident remained dissatisfied and contacted this service on 8 December 2021. The resident wanted an increase in the level of compensation. She has also requested for her husband to be removed from the tenancy agreement.

Assessment and findings

10. 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 in the complaints process. There are three principles driving effective dispute resolution: Be fair – treat people fairly and follow fair processes, put things right, and learn from outcomes.
11. The Ombudsman must 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 consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes.

Policies and Procedures

12. Within its allocation policy the landlord states that it does not consider anyone ineligible for housing if they have caused anti-social behaviour. However, applicants or members of their household who behaved unacceptably, either currently or in the past, which is serious enough to make them unsuitable to be a customer, will be treated as ineligible for allocation of accommodation and therefore will be excluded from the housing register. The exclusion will remain until the customer can demonstrate that the behaviour has been moderated and will not re-occur.
13. The landlord states that unacceptable behaviour includes:
    1. Applicants who have an unspent criminal conviction committed within, or in the locality of a property.
    2. Applicants who have displayed threatening, violent, or otherwise abusive behaviour towards another customer, the landlord’s or its partner agency’s employee or person employed to undertake work on their behalf.
14. This policy also states that the landlord will not automatically consider anyone ineligible for housing if they have a previous conviction. However, where it is concerned that this individual will pose a risk to themselves, our staff and contractors, the scheme and/or home and the wider community their eligibility will be reviewed. This also applies to any joint tenancy or household member. If following the review, it is considered that the risk is too great, the applicant will not be eligible for housing.
15. The landlord’s complaint policy states that it will aim to provide a its stage one complaint response within ten working days and its stage two response within 20 working days. Where it identifies that the timescales are not possible it will agree and appropriate extension for responses with the resident.
16. The landlord states that it will only provide limited compensation as a final option and where the resident has suffered significant inconvenience as a result of the landlord’s, or their contractor’s or agent’s actions.

The resident’s husband being added to the tenancy agreement.

17. The landlord acted responsibly by offering to move the resident and her family within a short period of time after the police issued a “threat to life order” against her husband.

18. The landlord arranged a viewing of the property for 18 May 2020. It stated it asked the resident if the tenancy at the property would be a sole or a joint tenancy. The landlord has stated the resident informed it that the tenancy for the new property would be joint with her husband. As such the tenancy agreement for the new property was drafted for both the resident and her husband to sign. The Ombudsman is aware that the resident disputes that she ever agreed to a joint tenancy.
19. On 18 May 2020, the resident visited and viewed the new property with her husband. On that same day, both the resident and her husband signed the new tenancy agreement. The resident has stated that she did not believe that she was signing the tenancy agreement. She believed that they were signing a different form to accept the property. It was the responsibility of the resident to read and understand what she was signing. This service has reviewed the tenancy agreement, signed by the resident and her husband as part of our investigation and we are satisfied that it is clear in stating that it was a tenancy agreement. The document was also clearly prepared in the name of both the resident and her husband. If the resident had not been in support of the joint tenancy, she could have chosen not to sign the tenancy agreement and requested that a new, sole tenancy agreement be prepared instead. It would have been reasonable for the resident to have raised this at the time to the landlord. Therefore, this service concludes the landlord acted reasonably during the signing of the tenancy agreement, based on the available evidence.
20. The resident has said that the landlord added her husband to the tenancy without her written consent. The emergency move to a new property would always need a new tenancy agreement as each property has its own agreement, which would not be transferred from the previous property.  This new tenancy commenced on 25 May 2020. The resident has signed it, thereby agreeing to its terms which include it being a joint tenancy agreement. Her signature on the tenancy agreement can be regarded as written consent and no further written consent would be required in these circumstances from the resident.
21. The resident has claimed that she was ‘set up’ by the landlord’s staff as a deliberate act to sign the joint tenancy agreement. There is no evidence provided to this service that supports this claim. The landlord has provided two separate members of staff who spoke with the resident and confirmed she had requested a joint tenancy. The resident has then signed this tenancy agreement. The Ombudsman’s approach to reviewing evidence where there are conflicting accounts of what happened, with no evidence to support either account means we cannot say which version of events is correct. The landlord has however, acted reasonably by investigating the resident’s concerns and interviewing the staff members involved. However, as the staff members’ accounts differed from the resident’s, it was reasonable for the landlord not to take any further action due to insufficient evidence to support the allegations.
22. The landlord’s allocations policy states that having criminal convictions will not automatically make a person ineligible for a tenancy. They would also not be automatically ineligible for having been a perpetrator of anti-social behaviour. It is an assessment and decision process for the landlord as to whether an individual will be granted a tenancy, taking into account any previous anti-social behaviour and/or criminal convictions, as well as the individual’s current circumstances and any risk of reoffending. In these circumstances the landlord has stated it conducted its risk assessment and following this, it satisfied itself that the resident’s husband could be granted a tenancy agreement. The landlord has therefore, in the Ombudsman’s opinion acted reasonably in the circumstances and in line with its legal obligations as well as its own policy and procedures.
23. The resident has stated that because the landlord issued the joint tenancy, she has been subject of an injunction. The resident was also liable for court related costs and her husband is refusing to remove himself from the tenancy agreement. The Ombudsman is aware that the injunction was issued by the court. It directed how the resident, and her husband could contact the landlord. This was after the landlord alleged the resident and her husband made excessive contact to the landlord. The landlord also said that they also made derogatory and racist comments to its staff. The Ombudsman is not able to comment on this specific matter as it has been through the court process. This is because the court is a higher authority than the Ombudsman and therefore it is outside our remit to overturn decisions made by the court. The landlord said that it would have sought the injunction even if the resident had been a sole tenant. This is because the tenancy agreement states that the tenant is responsible for the behaviour of any person living in the property. The landlord was entitled to seek legal advice and obtain an injunction as it has done in these circumstances. It has clearly explained its reasons for seeking an injunction and it does not need to do anything further in this regard.
24. In the circumstances of the resident’s husband being added to the tenancy agreement, for the reasons described above the landlord has acted appropriately and in line with its own policy and procedures. Its actions and decisions have been reasonable and therefore there is a finding of no maladministration to this aspect of the complaint.

The landlord’s handling of the associated complaint.

25. The resident first complained to the landlord on 5 October 2021. The landlord provided its first stage complaint response on 2 November 2021 and found no service failure. In its final response to the resident’s complaint on 2 December 2021, the landlord accepted that it had made an error by not answered the resident’s complaint in full by not commenting on the resident’s husband’s previous convictions. In the Ombudsman’s opinion, the landlord acted reasonably by apologising for its error and by offering compensation to put things right for the resident. Although the landlord made an error in not responding fully, this did not affect the overall outcome of the complaint. Therefore £30 is reasonable compensation under the circumstances.
26. The landlord’s review of the resident’s complaint was appropriate, having taken witness accounts from multiple members of staff, seeking advice from its legal team, and reviewing its policies and procedures within its response, in a timely manner. The landlord accepted its initial error within its stage one response and provided reasonable compensation to the resident, proportionate to that error. Therefore, in respect of the handling of the resident’s complaint there is a finding of reasonable redress by the landlord.

Determination (decision)

27. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the resident’s husband being added to the tenancy agreement.
28. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to the investigation which, in the Ombudsman’s opinion, resolves the complaint in respect of the landlord’s handling of the associated complaint satisfactorily.