East Riding of Yorkshire Council (202013275)

REPORT

COMPLAINT 202013275

East Riding of Yorkshire Council

31 March 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

1. The complaints are about the landlord’s response to the resident’s concerns:
   1. About the process it followed when changing rent collection and calculation periods; and that it had relied on a clause that was not included in his tenancy agreement when making changes to the rent periods.
   2. That it had failed to serve a Notice of Variation.
   3. About clause 1.8 of his tenancy agreement.
2. The resident has also complained about the landlord’s complaint handling.

Jurisdiction

3. 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.
4. After carefully considering all the evidence, complaints 1b and 1c are outside of the Ombudsman’s jurisdiction.

Notice of Variation

5. At the heart of the resident’s complaint is his concern that the landlord has failed to comply with the provisions of the Housing Act 1985 (the Act) when seeking to change the basis on which rent due under the tenancy agreement is calculated and collected. The resident is of the opinion that the landlord should have served a Notice of Variation under section 103 of the Act.
6. Paragraph 39(i) of the Scheme states – “the Ombudsman will not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.”
7. The Ombudsman cannot determine whether or not the landlord failed to comply with section 103 of the Act. A court would be best placed to decide whether the landlord had failed to comply with statutory requirements, and if so, what an appropriate remedy would be in the circumstances. While consideration of this complaint falls outside of our remit, the events surrounding it have been referred to in the report below for the purposes of providing context.

Clause 1.8 of the tenancy agreement

8. In correspondence to both the landlord and the Ombudsman, the resident has raised concerns about clauses contained within his tenancy agreement. Of particular concern to the resident, is that his tenancy agreement contains two clauses in relation to a variation of the agreement. Clause 1.8 and 11.6. These state:
   1. Clause 1.8 – “the Council may vary any of the terms of this Agreement (including the amount of the rent and services provided) by giving you four weeks written notice.
   2. Clause 11.6 – “if we need to change or vary your conditions of tenancy we will send you a letter telling you that we intend to serve a Notice of Variation. This letter will explain the proposed changes and ask for your comments within a given timescale. We will then consider your comments before we decide whether or not to go ahead with the changes. If we do go ahead you will then receive the Notice of Variation that will give details of the changes and the date on which they begin. You will receive this in writing at least four weeks before the changes come into effect. You will not need to sign a new Agreement”.
9. The resident had raised concerns about the legality of clause 1.8 – especially given clause 11.6, and is concerned that when responding to the matter, the landlord has not committed to removing clause 1.8; or carrying out a review of the tenancy agreement within a definite timescale. Paragraph 39(r) of the Scheme states – “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide”.
10. Although the resident’s concerns about clause 1.8, and its potential application, are noted, the tenancy agreement is a legally binding contract between the landlord and the resident. The Ombudsman does not have the authority to order the landlord to take any action in relation to amending or reviewing the terms of the tenancy agreement; and as such, consideration of this complaint falls outside of our remit. A court would be best placed to make any such order.

Background and summary of events

11. The resident is an assured tenant of the landlord’s property. The property is a two­‑bedroom semi-detached bungalow. The resident’s tenancy agreement states the rent that is payable on a fortnightly basis.

Summary of events

12. On 4 January 2021, the landlord wrote to the resident to advise that it was making changes to the way that it charged and collected rent. It explained that its then current practice was to charge rent over a 48-week period, which allowed four weeks within the year where no rent was charged. From April 2021, it would be collecting rent over a 52-week basis. This would have the effect of reducing the weekly rent charge, and removing the four “rent free” weeks. The landlord added that the resident would pay the same amount of rent over the course of the year April 2021 to March 2022.
13. The resident wrote to the landlord on 8 January to advise that the landlord’s letter did not make it clear that it was varying the terms of the tenancy agreement. The resident referred the landlord to the Act, and advised that in line with the legislation, it was necessary for the landlord to consult residents, and to consider the outcome of the consultation before proceeding with any variation. The resident also advised that this process was explicitly referred to under clause 11.6 of his tenancy agreement.
14. On 18 January, the landlord advised that it was not varying the terms of the tenancy agreement. It advised that under clause 3.8 of the tenancy agreement, it was proposing to change the process and arrangements in calculating or payments of rental changes. It was seeking comments from residents as part of the process, and would make a decision after 5 February once comments had been received.
15. The resident replied on the same day to advise that clause 3.8 which the landlord had referred to was not included in his tenancy agreement, and those which pre-dated April 2013. The resident added that while he supported the landlord’s move towards providing residents with options for paying rent, his tenancy agreement stated that the property was rented on a fortnightly basis, and if the landlord intended to “raise rents” every 52 weeks, then it would need to serve a Notice of Variation to proceed.
16. The landlord and resident continued to exchange correspondence, in relation to the landlord’s right to vary the tenancy agreement, and the procedure that should be followed. The resident’s concerns about clause 1.8 of his tenancy agreement, and his wish for the landlord to carry out a review, as detailed at the beginning of this report, were also addressed via a formal complaint response by the landlord on 24 March 2021.
17. On 14 April, the resident submitted a “feedback request” through the landlord’s website. The resident indicated that he wished to complain, and set out the details of his complaint – that being, that he considered the landlord had sought to vary his tenancy agreement without service of a Notice of Variation as required by s103 of the Housing Act 1985. The landlord responded to the complaint on 19 April, it said:
    1. The changes were not intended to be a change or variation of the terms of the tenancy agreement, which would give rise to the requirement of a formal Notice of Variation being served upon every tenant as required by s103 of the Housing Act 1985. Rather, the proposal was to change the process and arrangements in calculating or payments of rental charges.
    2. As part of the process, it had sought comments from all tenants regarding the proposals, and all feedback which was returned within the period until 5 February 2021 had been considered.
    3. A decision was subsequently made, and a letter was sent to all tenants explaining this.
    4. Tenants retained the choice as to what amount they pay and when they pay, providing that their account does not fall into arrears. For example, a tenant could decide to continue paying their rent with a payment frequency to 48 weeks, but equally they may choose to pay over a 52-week period.
    5. It would continue to be flexible to suit individual tenant choices.
18. The resident was unhappy with the landlord’s response and asked for his concerns to be escalated. The landlord subsequently issued its final response to the complaint on 22 April. It said:
    1. It had reviewed the matter with its legal representative, and it would not give rise to the requirement of a formal Notice of Variation being served in accordance with s103 of the Housing Act. The rent that the resident was being charged would remain the same.
    2. It was “not sighted” as to why the change from a 48-week period to a 52-week period impacted the resident adversely. If it was a matter of challenging its interpretation of the law, then it would have a different view from the resident.
    3. However, if there was an issue of ability to make rental payments, the resident should raise this with Housing Services separately.
    4. If the resident was unhappy with the response to the complaint, he could refer the matter to the Local Government and Social Care Ombudsman (LGSCO) for further consideration.
19. In May 2021, the resident referred his complaint to the Ombudsman. He said that he remained dissatisfied with the landlord’s response for a number of reasons. He said:
    1. The landlord should have treated the matter as a formal complaint sooner, as opposed to regarding it as “feedback”.
    2. The landlord’s handling of the matter had resulted in the complaints process being protracted.
    3. The landlord had incorrectly signposted him to the LGSCO.
    4. There was a lack of information available about the landlord’s Complaints policy and/or procedure.
    5. He did not consider that the action proposed by the landlord guaranteed a solution, or put things right.

The landlord’s Feedback policy

20. The landlord’s Feedback policy (the policy) sets out how it will record and handle feedback it receives from residents. The policy covers complaints in addition to compliments. “Feedback” is defined as “information given by customers about any Council service or member/s of staff, specifically in the form of a comment, compliment or complaint”. A “complaint” is also defined within the policy as – “a negative statement about the quality of a service provided by or on behalf of the Council”.
21. The policy also sets out the timescales for dealing with feedback and complaints. It states that if the feedback is a complaint, the customer should be informed of the response timescales, and be given an overview of the procedure. Consideration of the complaint at stage one of the process will be undertaken by the relevant service area, and a response should be provided within 10 working days.
22. If a customer is not happy with the response, they have 30 days to ask for their complaint to be considered by the relevant Director. The Director will respond to the complainant within 10 working days.
23. The policy states that if the resident remains dissatisfied after taking their complaint through both stages of the complaints procedure, they may ask the LGSCO to investigate their complaint. The policy refers to the Housing Ombudsman, but only insofar as to advise that this Service will only consider complaints once a landlord’s own internal complaints procedure has been exhausted.

Assessment and findings

24. In response to the resident’s concerns about the process that had been followed in communicating the changes in how the rent had been calculated, the landlord appropriately sought legal advice. Upon receipt, it confirmed to the resident that it had been advised that its actions did not amount to a variation of the tenancy agreement. While it is acknowledged that the resident disagrees with the conclusion that had been reached, the landlord was entitled to rely on the legal advice that it had been provided.
25. The landlord also provided the resident with reassurance that the method in which he wished to pay his rent would not be affected by the changes, and that he could continue to pay fortnightly.
26. However, when considering the complaint, the Ombudsman has noted that the landlord had referred to clause 3.8 of the (newer) tenancy agreements when explaining the basis on which it had made the changes to the rent calculation and collection. As detailed above, the resident’s tenancy agreement does not contain any such clause. The Ombudsman has not been provided with a copy of the newer tenancy agreement, and as such, cannot confirm the exact wording of the clause. Nevertheless, from the evidence that is available, it appears that this clause relates to the landlord’s right to make changes to the arrangements in calculating or payments of rental charges.
27. During the course of the complaint, the resident had informed the landlord that his tenancy agreement contained no such clause. The evidence provided to the Ombudsman does not show that the landlord acknowledged, or responded to, this point. In the circumstances, it would have been reasonable for the landlord to acknowledge that the resident’s tenancy agreement did not contain any such clause; and to explain why notwithstanding this, it believed that it had acted appropriately in relation to communicating and implementing the rent calculation and payment changes.
28. The Ombudsman cannot speculate about the reasons why the landlord did not acknowledge or respond to the resident’s comments. However, that it did not do so was inappropriate and a failing in its handling of the matter. To put things right, the landlord should now take steps to provide the resident with an explanation, and offer compensation for the inconvenience that was caused as a result of its failure to address this during the complaints process.

Complaint handling

29. As detailed above, the landlord’s process for dealing with complaints is set out in its Feedback policy. A copy of the policy is available on the landlord’s website for residents to view.
30. The Ombudsman’s Complaint Handling Code (the Code) was devised to enable landlords to resolve complaints raised by their residents quickly, and to create a positive complaint handling culture. With regards to communication with residents, the Code states – “at the completion of each stage of the complaints process the landlord should write to the resident advising them of the following:
    1. The complaint stage.
    2. The outcome of the complaint.
    3. The reasons for any decisions made.
    4. The details of any remedy offered to put things right.
    5. The details of any outstanding actions.
    6. Details of how to escalate the matter if dissatisfied”.
31. The Code further states that when communicating with residents, landlords shall address “all points raised in the complaint”, and provide “clear reasons for any decision, referencing the relevant policy, law and good practice where appropriate.”
32. In correspondence to the Ombudsman, the resident raised concerns that the landlord should have started the complaints process sooner – and that its decision not to do so resulted in the process being protracted. From the evidence that has been provided to the Ombudsman, it is not clear why the landlord did not treat the resident’s correspondence of 8 January 2021 as a formal complaint. It is acknowledged that the resident had not used the word “complaint” within his correspondence. However, he had raised concerns about the then recent communication which had been issued by the landlord, and the actions that it was proposing to take.
33. As the conversation progressed towards the end of January, it was evident that the resident was expressing dissatisfaction with the situation. As such, it would have been reasonable for the landlord to treat the matter as a formal complaint from that point. If the landlord was unsure as to whether or not the resident was complaining, it would have been reasonable for it to seek clarification. That the landlord did not, was a failing in its handling of the matter. As a result, the formal complaints process did not commence until approximately three months later.
34. After the complaints process was initiated in April, the landlord did respond to the resident’s concerns swiftly. The stage one response was issued five days after the resident submitted the “feedback enquiry”. While this was well within the timescales set out in the policy, it would have been reasonable for the landlord advise clearly that the correspondence was its response at stage one of its complaints process. This was a shortcoming in the landlord’s response. However, it is noted that the landlord did appropriately explain what the resident could do if he was dissatisfied with the response.
35. The stage two response was also issued quickly. However, again, the landlord did not clearly label the correspondence as a stage two response. In addition, the response did not address all of the concerns that the resident had raised. Furthermore, the landlord signposted the resident to the LGSCO in error. While this error did not have a significant impact on the resident and the referral of his complaint, the landlord had provided him with incorrect advice and this was a failing in the circumstances.
36. As such, while the landlord’s stage one and two responses to the complaint were issued quickly, the evidence provided to the Ombudsman does demonstrate that overall the landlord’s handling of the complaint was not appropriate. It follows that the landlord should now acknowledge this, and take steps to put things right.

Determination (decision)

37. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was:
    1. Maladministration in the landlord’s response to the resident’s concerns about the process it followed when changing rent collection and calculation periods; and that it had relied on a clause that was not included in the resident’s tenancy agreement when making changes to the rent periods.
    2. Maladministration in the landlord’s complaint handling.

Reasons

38. When considering the resident’s concerns, the landlord appropriately sought legal advice prior to confirming its position. The landlord was entitled to rely on the advice it had received. However, the landlord failed to acknowledge and address the resident’s concern that his tenancy agreement did not contain the clause which it had sought to rely on when making changes to the rent collection and calculation process. This was inappropriate, and the landlord should address this now.
39. The landlord failed to treat the resident’s early correspondence as a complaint despite the fact that he had clearly expressed concerns about the landlord’s actions, and intended actions. As a result, the formal complaint process was delayed by approximately three months. When the landlord issued its final response to the complaint it failed to address all of the resident’s points and signposted him incorrectly. The Ombudsman has therefore ordered a remedy aimed at putting things right.

Orders

40. Within four weeks of the date of this decision, the landlord should:
    1. Apologise to the resident for the failings identified by this investigation.
    2. Pay the resident a total of £350 compensation comprised of:
       1. £200 for the failure to acknowledge and address the resident’s comments that his tenancy agreement did not contain clause 3.8.
       2. £150 for the inconvenience caused by the complaint handling failures that have been identified.
41. Within six weeks of the date of this decision, the landlord should write to the resident to acknowledge his concerns that his tenancy agreement does not contain clause 3.8. In doing so, the landlord should explain why, notwithstanding this, it believes that it has acted appropriately in relation to making the rent charges and collection changes.
42. Within six weeks of the date of this decision, the landlord should carry out a review of its Feedback policy in light of the Code. The outcome of the review should be shared with the Ombudsman.