Brent Council (202003690)

REPORT

COMPLAINT 202003690

Brent Council

30 July 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 response to the resident’s request for a permanent decant.

Determination (jurisdictional) 

2. 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.
3. After carefully considering all the evidence, in accordance with paragraph 39 (i) of the Housing Ombudsman Scheme, the following aspect/s of the complaint is/are outside of the Ombudsman’s jurisdiction.

Summary of events

4. The resident lives in a local authority studio flat on a weekly secure tenancy since 2012. He has no vulnerabilities recorded.
5. On 3 October 2019, a ‘Memorandum of Agreement’ (MOA) was made between the resident and the landlord that the landlord would complete all repairs and investigations set out in the Scott Schedule (not seen) dated 27 December 2018, while the resident was temporarily decanted for a period of no more than three months, after which the resident would return to the property.
6. The agreement confirmed that the landlord would pay the resident the sum of £10,000 in full and final settlement of all and any claims to date against the landlord in respect of disrepair at the property.
7. The resident was moved into temporary accommodation on 19 February 2020.
8. On 6 May 2020, the landlord says that all works were complete, however due to the Covid pandemic there was a halt on all moves. The resident was asked to return on 22 June, however the resident disputed that the jobs had been finished and asked for proof, via his solicitors. 
9. The resident submitted a complaint on 26 June 2020 which said that the landlord was in breach of its legal promise as the temporary decant had exceeded the three-month period.
10. On 27 August 2020, following an approach from this service, the landlord wrote to the resident and advised that in light of the legal case which is pending and so as not to influence or prejudice the matter, an investigation in line with the landlord’s complaints procedure could not be undertaken. The landlord suggested that any concerns be directed through the resident’s solicitor to the landlord’s in house legal team. In the meantime, the complaint would be closed. 
11. The resident approached this service on 22 September 2020. He said that his solicitors had advised that they could enforce the disrepair issues, but the legal aspects of the claim did not cover the decant issues. Accordingly, he wished to complain regarding the decant issue. 
12. A first stage response was sent by the landlord on 8 November 2020 in response to the resident’s letter of 8 October 2020 (not seen) that it had not responded to his request for a permanent decant. The complaint was not upheld. The landlord’s investigation found:

a)     In 2018 it was agreed that the work on the resident’s property should not take longer than three months therefore only a temporary decant was required.

b)     Work started 19 February 2020 and on 21 April a post inspection of the works on the property was completed.

c)     On 6 May the resident was informed the works were completed and on 12 June he was asked to return by 22 June 2020.

d)     On 29 June the resident said it had been over four months, so the landlord was in breach of its legal obligation and on 10 July the resident’s solicitor said no keys had been given to him.

e)     The landlord contacted the resident again on 14 July to arrange a date for him to collect the keys.

f)       He was notified that the works were completed in May and the surveyor advised the resident to appoint a surveyor if he was concerned.

g)     Tests confirmed there was no damp in the property.

h)     The landlord concluded that a permanent decant was not appropriate. The work was completed in three months, and he was advised of this in May following the inspection in April. He was asked to return to the property in July but had remained in the temporary accommodation.

i)        The surveyor had acted reasonably to mitigate any further concerns by undertaking further tests which clarified there was no damp in the property.

j)        There was no evidence that a permanent decant was required.

k)     The resident was asked to contact his Housing Officer and arrange collection of his keys.

l)        Escalation rights to the Chief Executive were given. 

13. A further appeal was made on 13 November 2020, under the Housing Allocation policy. This was chased again by the resident on 22 January as under the ‘allocations policy’ he should have had a review within 56 days.
14. A stage two complaint response from the landlord was issued on 2 March 2021 and said:

a)     It was agreed in October 2019 with the resident’s solicitors that £10,000 would be paid for the state of disrepair to his property, primarily damp.

b)     The landlord agreed to complete all repairs as per the inspection report, after the resident was moved to a temporary address for no more than three months.

c)     The resident vacated his home address on 19 February 2020, and he was advised on 6 May by his Housing Officer that the scheduled work on the property was complete.

d)     On 27 May 2020 the resident said the repairs were incomplete and that the landlord’s allocations policy said he should now be offered a permanent move and he would consider staying in the temporary property if offered.

e)     The resident’s solicitor and the landlord corresponded as the resident felt the repairs were incomplete under the terms of the memorandum of agreement. The landlord said that the resident should return to the property.

f)       The initial complaint was made on 8 October 2020 and responded to on 8 November 2020, which concluded that as the works were now complete on the property, a permanent decant was not appropriate.

g)     The landlord confirmed to the resident’s solicitor that the work set out in the initial schedule had been completed.

h)     The available evidence showed that the property was habitable within three months as per subsection 12.8.12 of the landlord’s housing allocations scheme.

i)        However, every item on the schedule had not been finished within that time, and not until 17 November 2020, and it was therefore ‘open to debate’ whether 12.8.12 of the Housing Allocation policy applied in this instance.

j)        It was acknowledged that the difference was not made clear in previous complaint correspondence, and that the resident did not receive a reply to his email of 13 November, due to correspondence between his solicitor and the landlord’s legal services at that time.

k)     Given this, the landlord had used its discretion to refer the issue to the ‘allocations panel’ for consideration for a decant priority which would allow him to bid for properties.

l)        It was not possible for the resident to stay in the temporary property as the area was to be developed and he would be contacted within three weeks with the panel’s decision.

m)   Appeals rights to this Service were given.

15. On 1 April 2021, the resident was told his case for a move was approved by the decant panel.

Reasons

16. The resident was temporarily decanted while works were being undertaken at the property. As part of the MOA, the resident was to move back once the works were complete. The landlord had advised that the works were complete, and that the resident could move back. However, this was disputed by the resident, and in its final response, the landlord appears to have conceded that not all of the items on the schedule attached to the MOA had been completed. The MOA and schedule were drawn up for the purposes of litigation and therefore any divergence from them/disagreement arising from them should be pursued in court. A court could decide to what extent the conditions of the MOA have not been met; and could decide on the most appropriate remedy – whether that be damages or the offer of a permanent alternative property.
17. The resident has advised this Service that the landlord had breached its allocations policy in terms of not agreeing to a permanent decant. He says that on this basis, this is a separate complaint to the disrepair claim. However, the decision to decant was on the basis that works were required at the property and formed part of the MOA. It follows that we cannot consider the landlord’s decision in isolation of the MOA and the facts relating to the disrepair claim.
18. The resident has argued that three months to complete the work was never going to be long enough, and that therefore the decision from the outset should have been to offer a permanent decant. The Ombudsman cannot consider this as this was a term of the MOA. If the resident was unhappy with this, then steps should have been taken to seek amendments prior to agreeing to it.
19. The Ombudsman cannot order the landlord to move to another property, or to award him a priority decant as we do not have this power. Had the matter not been outside of our jurisdiction, the Ombudsman could order an amount of compensation if we found that the landlord it had failed to apply its allocations policy appropriately. The Ombudsman could also order that the landlord reconsider/reassess the resident’s situation, but we could not influence the decision. In the circumstances and given the Memorandum of Agreement, as above, the complaint is outside the jurisdiction of this Service.