London & Quadrant Housing Trust (L&Q) (202201126)

REPORT

COMPLAINT 202201126

London & Quadrant Housing Trust

03 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 the following:

1. The landlord’s response to the resident’s queries on the parking provision in his tenancy agreement.
2. The resident’s reports that the landlord was bullying and discriminating against him.
3. The landlord’s handling of the associated formal complaint.

Background and summary of events

2.     The resident is an assured shorthold tenant of a one-bedroom flat on the third floor of a block. The landlord is the leaseholder of the flat with a private company owning the freehold and a managing agent acting on its behalf.

3.     The original tenancy between the landlord and the resident was an assured shorthold tenancy signed on 17 June 2011. This was a fixed term tenancy. There is no mention of a parking space or garage listed under the description of the property. The resident was given a parking fob as part of the set of keys provided.

4.     Since the original tenancy was granted there have been a number of renewal agreements between the resident and the landlord. The renewal agreements in 2017 included ‘parking bay 2’ in the property description. This information was not included in the renewal agreements that followed, nor in the relevant agreement at the time of the complaint. All renewal agreements have been assured shorthold tenancies.

5.     The landlord contacted the resident on 22 December 2021 by email. It stated that his tenancy agreement had ended on 31 May 2021 and attached a renewal letter detailing the specifics of the renewal. The resident was asked to sign a renewal agreement that backdated the tenancy to 1 June 2021 and expired on 31 May 2022. It confirmed that the rent increase would not be backdated. The resident was unhappy that the landlord had sent this letter three days before Christmas which, he explained, had caused him distress.

6.     The landlord then asked the resident if he would be willing to sign two agreements, one relating to the back dated period with no rent increase, and a second running to June 2022 reflecting the rent increase. The resident replied to the email agreeing to the arrangement, although pointed out that this arrangement had caused artificial rent arrears to be added to his account in the past.

7.     The landlord contacted the resident again asking whether he wished to renew his tenancy agreement in February and March 2022. The resident replied by email on 3 March 2022. He stated that he did wish to renew his agreement and hoped that parking bay two would be included. He pointed out that the tenancy should have been converted to a fully assured tenancy upon the first renewal, but the landlord had reneged on its promise. He added that had this been done the increment would not have arisen.

8.     Email exchanges continued regarding the parking bay and the landlord confirmed it would not be amending the tenancy agreement to include the bay, but its email confirmation that the resident could use parking bay two would be sufficient. The resident was unhappy with this. He referred to a previous Ombudsman decision in 2018/19 where the landlord agreed that parking bay two would be explicitly written into the tenancy agreement.

9.     The resident also raised concerns regarding assurances made when he first accepted the tenancy. He stated that he had been advised that the parking space was part of the tenancy and that he would have the right to purchase the property at a discount once it had been transferred to an assured tenancy.

10. Emails continued to be exchanged, with a housing officer offering to manually amend the agreement. She later confirmed to the resident that this would not be possible and that he would no longer be offered parking bay two, but instead would be allocated parking bay fourteen.

11. The landlord explained that the managing agents had requested the use of four parking spaces, including parking bay two, to be used as visitor parking. The landlord said that it did not own the bays, but only a right to use them. This meant that parking did not form part of the resident’s home or rent but was allocated on availability. The email of 20 March 2022 confirmed that should the resident continue to use the parking space two after 1 May 2022 he would receive a ticket.

12. The resident was extremely unhappy with the change in parking bay and believed that the housing officer had not acted in his interest. He asked that the matter be escalated to a senior manager.

13. Given the resident’s expression of dissatisfaction, the landlord forwarded the matter to the complaints team. A manager also called the resident on 24 March 2022. The resident was upset as during this conversation the manager agreed to forward his email to the resident and, he believed, this was not done as promised.

14. The manager issued a response at stage one of the complaints procedure on 12 April 2022. This confirmed that no evidence had been found to support the resident’s view that the parking bay was marketed to him as part of his tenancy. The email set out that the resident’s tenancy was a fixed-term intermediate assured tenancy. It did not come with a parking bay, but rather the resident had the right to use a bay as long as this was available and at the managers’ discretion. The email stated that the landlord did not own parking bay two and the resident did not pay rent for it. He was only allowed to park there or in any other bay as long as the landlord agreed. From 1 May 2022, parking bay two would no longer be available but parking bay fourteen could be used.

15. The manager noted that the resident was unhappy that he had not sent the email address straight away after the telephone conversation on 24 March 2022. He pointed out that he had not said this would happen on the same day. He noted that his colleague had called the resident on the same day, but this was not instead of providing the email address, which was provided at a later date. The manager apologised for the misunderstanding. The complaint was not upheld.

16. The housing officer also contacted the resident. She apologised if she had caused distress and explained that she had not intended to come across as insensitive but rather to give clear information on the landlord’s position. The manager provided the relevant email information on 31 March 2022, although the resident disputed that this was the correct email address.

17. On 14 April 2022, the housing officer repeated the information regarding the parking bays, confirmed that the tenancy agreement would not be amended and requested that the resident sign the renewal agreement. She reminded the resident that two months’ notice was required should he wish to terminate the tenancy.

18. On the same day, the landlord sent a second response at stage one of the complaints procedure issued by a different member or staff. This set out the following findings:

1. The landlord does not own or manage any of the parking bays, some of which were privately owned, but the majority belonging to the freeholder and managed on their behalf by the managing agents. The managing agent reserved the right to withdraw permission or change the configuration of the parking at any time where there is a good reason to do so.
2. As an assured shorthold tenant, the resident was entitled to the right to park but not the right to an allocated bay. It noted that the original tenancy agreement made no mention of a parking bay number but did state that the resident was provided with a car park fob, in line with his right to park.  When the residents’ original fixed term tenancy came to an end a new tenancy agreement was signed which included parking bay 2.  The landlord confirmed that this was an error and subsequent agreements did not mention a specific parking bay. The managing agents had recently reconfigured the parking arrangements in the car park to introduce additional visitors parking to alleviate some of the problems caused by limited street parking spaces. Bays one to four had been selected as they were closer to the concierge and therefore easier for them to manage. The landlord confirmed that it was not proposing to remove the resident’s right to park but offered bay 14 as an alternative.   It advised that should the resident continue to park in bay 2, he would receive a penalty notice for unauthorized parking.  The complaint was not upheld.

19. The resident submitted a further complaint on 14 April 2022 listing the following areas of concern:

1. That he was being bullied and harassed by the landlord and discriminated against due to his racial background.
2. That his tenancy had been marketed to him in 2011 with fixed allocated parking in bay two, that the assured shorthold would become an assured tenancy, and once this happened, he would have the right to purchase at a discount.
3. That when the first renewal agreement was signed in 2017, the promise in relation to the tenancy was not honoured. The landlord explained that this would be contrary to the s.106 agreement required by the local authority.
4. The local authority confirmed that there were no such requirements.
5. There were rent arrears on the account due to an administrative error and these had had a negative impact and had contributed to the decision not to offer an assured tenancy.
6. That a manager had informed him that his parking bay was to be used as visitor parking and he would be offered bay fourteen
7. This was confirmed by email by the housing officer who was now victimising the resident as he had made a complaint. He believed that he was being harassed and bullied and discriminated against.

20. Correspondence continued to be exchanged between the parties in much the same vein and both complaints were escalated to stage two. The first is undated and relates to parking bay two. This confirmed that as a suitable alternative parking space been provided, and the right to park was retained, the complaint was not upheld. The letter confirmed that the investigation by the Head of Residential Operations was ongoing, and he would respond separately.

21. This final response was sent on 17 June 2022. It provided an apology for the time taken and explained that expert advice had been sought from the head of legal services. The conclusion remained the same. The landlord was permitted to use the parking spaces but did not own the spaces. The original tenancy made no reference to a fixed parking bay and if this had been included the headlease provisions would have resulted in the landlord having to change the agreement.

22.  The tenancy was an intermediate tenure property. The landlord confirmed that all such lettings are granted as assured shorthold tenancies and do not convert to assured tenancies and affordable homes. If the resident wished to access an affordable home he would need to be assessed by the local authority and, if eligible, they would nominate the resident for an affordable home from their list. The landlord explained that s.106 forms part of the planning application but would not have provision for an intermediate home to be converted to an affordable home.  

23. The letter confirmed that no evidence of racial discrimination had been found during the investigation. The complaint was not upheld.

24.  The resident was not satisfied and referred the landlord to the plans which he believed linked the parking space to his property. The landlord responded on 24 June 2022 and explained that its view was that the headlease was the superior agreement and allowed the freeholder to make changes and offer alternative places. The landlord agreed to approach the managing agents to ask them to consider allowing the resident to continue using the parking space, but pointed out, that if this were agreed it would not be on a permanent basis. It would also mean that the resident’s parking bay was in the middle of the visitor bays.

 

 

Assessment and findings

Scope of investigation

25. Throughout the course of the complaint the resident has raised a number of legal issues that only a court could decide. For example: that verbal discussions prior to the grant of tenancy amounted to an enforceable term of the tenancy, resolving disputed interpretations of the head lease, whether accessing the parking space for over 10 years provides the resident with any implied right of use. It is not the Ombudsman’s role to make a legal decision in the same way a court does. The focus of this investigation is to consider the actions and decisions made by the landlord and whether these were fair in the circumstances.

26. The landlord’s decision to renew the tenancy as an assured shorthold rather than granting an assured tenancy. The resident was made aware of this in 2017 when his fixed term tenancy was renewed. The Ombudsman will not investigate complaints which were not brought to the attention of the landlord as a formal complaint within a reasonable period which would normally be within six months of the matter arising. Our position is in accordance with paragraph 42(e) of the Housing Ombudsman Scheme.

Parking space

27. The resident has raised the parking complaint on a number of occasions. Initially, a new housing officer tried to resolve the problem by manually amending the tenancy agreement to include the parking space. This offer was later revoked when the officer became aware that the landlord did not own the parking spaces. The officer apologised for her error and corrected the position as was appropriate.

28. Since this time, the landlord has been clear throughout that parking does not form part of the resident’s tenancy. In reaching this conclusion it has relied upon the terms of the tenancy, renewal agreements and the arrangements set out in the headlease. With the exception of the agreements in 2017, there is nothing explicit in the tenancy and renewal agreements that indicate that parking is included. Whilst a parking fob was provided along with other keys at the beginning of the tenancy, this was in keeping with the landlord’s contention that there was a right to park, but not to a particular parking bay. It would also provide access for visitor parking.

29. The landlord was unable to find any supporting evidence relating discussions or promises with the resident prior to the grant of tenancy. The only evidence was the resident’s recollection of what was said. The landlord has decided that there was insufficient evidence of any promise made and therefore no action has been taken to honour these. It has provided explanations as to why this action is not possible, i.e., that the property is let as an intermediate rental property, which do not convert to an assured tenancy.

30. It has also explained that it does not own the parking spaces and cannot therefore guarantee a particular parking space to the resident. In forming this view, it sought legal advice regarding the interpretation of the head lease and the parking provision for the resident’s property. Whilst the resident remains unhappy with the interpretation provided, the landlord acted appropriately in seeking legal advice. It was also appropriate that it adhered to the advice provided.

Discrimination

31. As part of its review at stage two of the complaints procedure the landlord reviewed all the evidence to identify any discrimination. It was satisfied that its actions had been in line with its policies and procedures and that there was no evidence supporting the residents’ claims. The landlord took appropriate action by instructing an independent manager to review its handling of the matter.

32. The Ombudsman investigation has not identified any evidence that would challenge the landlord’s conclusion. There are, however, areas where the service provided to the resident could have been better. These are discussed below.

33. The landlord requires that a fixed term renewal is in place for its intermediate rent properties. Its insistence on this has been interpreted by the resident as bullying. There are several emails chasing the resident to sign a renewal agreement, the majority of which set out the position, which is that if there is no renewal agreement the landlord may end the tenancy. Most of the emails have correctly explained this, however the email to the resident of 22 December 2021, stating that his tenancy had ended in May, was unnecessarily alarmist. It was also inaccurate. The fixed term had ended, but the tenancy had not, it continued on a periodic basis.

34. A renewal agreement is a new contract, usually for another fixed term which may not be exactly the same as the previous fixed term tenancy. The landlord’s practice of asking residents to back–date renewal agreements, often by a number of months, is not good practice. As illustrated within this complaint, as well as asking residents to retrospectively agree to terms, this practice can lead to administrative errors relating to the start date of the new terms and create artificial rent arrears. This practice applies to all intermediate rent tenancies and is not specific to the resident.

 

 

 

Complaint handling

35. The volume of complaints and correspondence has made it challenging for the landlord to manage the complaint as conversations were ongoing.

36. By the time the manager considered the second complaint at stage one, a further complaint had been made about him, relating to the delay in providing an email address. The manager continued with the response and provided an apology and explanation. This formed part of the later review and there is no evidence of unfairness given the nature of the complaint.

37. The car park complaint was put through the complaints process on two occasions that overlapped, in part to ensure that there was a review of the discrimination complaint by a manager who had not previously been involved. There were minor delays in the issuing of the final response in relation to the discrimination complaint whilst the landlord sought information from the managing agents. The resident was kept informed throughout this period. The matter has been considered by various senior staff and the landlord’s position has not changed.

38. With hindsight, this approach prolonged the complaint for longer than was necessary and encouraged the resident to continue to raise the same issue. Correspondence continued on the same theme. It is also noted that the resident had raised a complained about the parking situation in the past. The landlord should ensure that a line is now drawn under this matter as the difference of opinion continues to sour the resident’s perception of the landlord.

 Determination (decision)

39. In accordance with paragraph 52 of the Housing Ombudsman Scheme, the Ombudsman makes the following findings:

1. There was no maladministration by the landlord in relation to:
   1. The landlord’s response to the resident’s queries on the parking provision in his tenancy agreement.
   2. Its handling of the associated complaint.
2. There was a service failure by the landlord in relation to:
   3. The resident’s reports that the landlord was bullying and discriminating against him.

Reasons

40. The landlord reviewed the relevant tenancy and renewal agreement, the headlease and sought legal advice regarding the parking provision and whether there was a tenancy right linked to the resident’s occupancy. Broadly, the conclusions were that it did not own the parking space and could not therefore give a tenancy right and there was no explicit evidence (apart from superseded renewal agreements dated 2017) suggesting that one existed.

41. The landlord’s complaint handling sought to ensure that an uninvolved manager reviewed the discrimination claims. Although this resulted in the final response being delayed, the landlord kept the resident informed and was seeking evidence to help it reach its decision.

42. The landlord’s conclusions that there was no evidence of bullying failed to identify that the information given regarding the ending of the tenancy was not always accurate and created a false impression of the resident’s security. Its overall conclusion that there was no evidence of discrimination was, however, appropriate.

Orders and recommendations

Orders

43. The landlord apologises to the resident for the inaccurate information in its email of 22 December 2021 and pays compensation of £100 for the distress caused.

44. The landlord should confirm its compliance with the orders in this case to this Service within four weeks of the date of this report.

Recommendations

45. That the landlord reviews its practice of backdating fixed term renewal agreements to ensure that it is treating residents fairly.

46. That the landlord considers staff training and information sheets for residents on the following: intermediate rent and the differences between affordable rent tenancies; fixed term and periodic assured shorthold tenancies.