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Hyde Housing Association Limited (202224577)

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REPORT

COMPLAINT 202224577

Hyde Housing Association Limited

15 January 2024


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. This complaint is about the landlord’s:

a.     Response to the resident’s concerns about the Notice Seeking Possession (NOSP) it served on her on 2 December 2021 and the Pre-Action Protocol for Possession letter it issued on 4 August 2022.

b.     Handling of the associated complaint.

Background and summary of events

Background

  1. The resident is a secure tenant of the landlord. The tenancy commenced on 22 December 2009. The property is a 2 bedroom maisonette.
  2. There a long history of the resident challenging the services charged by the landlord. The resident’s concerns about the services provided have been the subject of a multiple separate complaints made to the landlord, a number of which have been determined, or are yet to be investigated, by this Service. However, this complaint is not about the services provided nor the resident’s concerns about those services but specifically whether it was reasonable for the landlord to serve her with the NOSP and pre-action protocol letter that were the subject of her complaint.

Summary of events

  1. On 6 December 2021, the resident emailed the landlord to say that she had spoken to an income officer earlier that day about a NOSP that had been served on her on 4 December 2021. The resident:

a.     Said that she did not owe £1,551.04. Her December rent payment was paid by standing order on 1 December 2021 and was not showing on her account and therefore the service charge arrears were £1,059.41.

b.     Said that she had been withholding only the incorrect increases that had been applied to her rent account, and would do so until the matter was resolved.

c.      Said that the Head of Property Charges had written to her on 31 July 2021 and confirmed that errors had been made, and she was still awaiting notification of the correct amounts that should have been charged from 1 April 2018 to date. The resident provided the recent communication she had had with them.

d.     Referred to other formal complaints she had made regarding the standard of the services provided and parking control, which she said were upheld. The resident said that she had not taken the £1,000 compensation offered and that the landlord would also be making credits to her account in respect of the incorrect charges that had been made since 2018. The resident went on to advise that once of this had been settled, her rent account would be put into credit.

e.     Said that it was it was completely unacceptable for the landlord to have served her with a NOSP.

  1. The same day, 6 December 2021, the landlord’s Head of Property Charges emailed the resident saying that they were sorry that she had received the NOSP, that they would pick this up with the income team straight away and ensure that it did not happen again. The Head of Property Charges went on to explain that they were in the final stages of the calculation on the charges and would ensure that all the adjustments and amendments were finalised before Christmas.
  2. On 22 December 2021, the resident emailed the income team, forwarding the email from the Head of Property Charges, and asking that someone inform her of what the current position was with regards to the NOSP that was served on her on 4 December 2021. The resident asked that they confirm they had received communication from the Head of Property charges, that the NOSP had been removed and that no further action would be taken.
  3. The resident emailed the landlord again on 7 February 2022 asking if someone could respond to her email of 22 December 2021, otherwise she would log a formal complaint. The Head of Property Charges emailed the resident the same day to apologise that they did not complete the service charge adjustments and amendments before Christmas. They then went on to say that they had picked this up and confirmed that the credits were applied to the affected accounts the previous week, with letters being sent to resident that week. The resident’s email of 7 February 2022 was forwarded to the income team the same day.
  4. On 16 February 2022, the resident emailed the landlord again to ask that someone in the income team read and deal with her communication regarding the NOSP which she said was wrongly served on her on 4 December 2021.
  5. On 2 March 2022, the resident logged a formal complaint with the landlord about the lack of response from its income team. The resident said that she:

a.     Had had no response to her email of 6 December 2021 regarding the NOSP, which she said had been wrongly served on her.

b.     Had forwarded copies of emails between herself and the Head of Property Charges.

c.      Would be withholding all increases in service charges that had been imposed since 1 April 2018 until such time as this matter was addressed.

  1. The landlord issued its stage 1 response on 9 March 2022 in which it:

a.     Agreed that the notice should not have been served, the officer that served the NOSP was employed as a temp and a more experienced officer would have been aware of this.

b.     Said that the officer had received appropriate training but appeared to have been unaware or to have overlooked ‘‘the fact’’ that the resident was in dispute and awaiting a further response to a separate service charge complaint.

c.      Assured the resident that the NOSP would not be acted upon, as it was incorrectly served. It also confirmed that a note had been added to the resident’s rent account and that she was free to dispose of the letter.

d.     Apologised for any distress or inconvenience caused and offered £100 compensation.

  1. On 5 June 2022, the resident emailed the landlord. The resident said that whilst its stage 1 complaint response had acknowledged that the NOSP should not have been served, the response made no reference to, nor offered any explanation for, the complete lack of response she received to 7 communications she made between 6 December 2021 and 2 March 2022 about this matter. The resident said that this was unacceptable and asked to escalate her complaint to stage 2.
  2. On 15 August 2022, the resident emailed the landlord again to say that despite all the assurances given to her she was issued with a ‘Pre-Action Protocol for Possessions Claim by Social Landlords’, which the resident noted was the next step of the possession proceedings after a NOSP had been served. The resident said that she was shocked to receive this and said that if the NOSP that was previously served was cancelled, ‘‘surely this renders any ‘Pre-Action Protocol for Possession Claims by Social Landlords’ null and void as the proper legal process had not been followed’’.
  3. On 25 August 2022, the landlord’s Head of Income emailed the resident to say that they were sorry the resident had had to chase responses. They went on to explain that the Accounts Manager, who had issued the response of 9 March 2022, was out of the business for an unspecified period of time and so would not have been able to pick up emails sent directly to her. The Head of Income asked that the resident send over any documentation she had recently sent and that once this had been done they would arrange a call to discuss her concerns with her.
  4. The resident sent the requested information on 23 September 2022.
  5. On 12 October 2022, the Head of Income wrote to resident confirming that her complaint had been escalated to stage 2 and that their response would concentrate on the issuing of the NOSP. They also asked that, in order to help them to deal with the complaint and to resolve the arrears on the account, the resident send them details of all the charge issues that had resulted in her stopping payments.
  6. On 26 October 2022, the resident emailed the Head of Income thanking them for their email of 12 October 2022 and asking why, as she already had a complaint at stage 2, a new complaint had been opened. The resident also referred to her email of 15 August 2022, in which she said she had asked to add the ‘‘illegal issuance’’ of the Pre-Action Protocol to the stage 2 escalation request made on 5 June 2022.
  7. On 14 November 2022, the Head of Income responded to the resident’s email of 26 October 2022, apologising for the delay as they had been on leave. They then went on to say that the stage 1 response of 9 March 2022 was given a reference that related to contact, not a complaint, and they believed that his was the reason for the resident’s limited contact from both the income and the complaints teams.
  8. The landlord issued its final response on 9 December 2022 in which it said:

a.     That the NOSP was not unlawfully issued, however it should have been clearer with the resident regarding the reason for the notice being served.

b.     The NOSP served in 2021 was issued by a temporary member of staff ‘‘who did not understand our previous history and the agreements made’’.

c.      It had offered the resident £100 compensation and acknowledged its poor customer service and communication.

d.     The resident had been in arrears since 1 June 2018, noting that the payments made over this time had not covered the monthly charge. The resident was required to pay all charges including rent and service charges associated to their tenancy, despite any challenges that they may have in respect of their Service Charges.

Assessment and findings

  1. It is noted that in the complaint correspondence, the issue was raised as to whether the actions of the landlord were lawful. However, it is not within this Service’s remit to make a legal judgement, as this is for the courts to do.
  2. The Housing Ombudsman provides an informal dispute resolution service which is an alternative to the courts. Our approach is framed by three principles – be fair, put things right and learn from outcomes. The purpose of our investigation is to assess whether a landlord responded appropriately to a given situation and to decide whether its actions were fair and reasonable, taking all the circumstances of the case into account.

Relevant legislation, agreements, policies and guidance

  1. Under the terms of the tenancy agreement, the resident is obliged to pay rent, within which is an amount allocated for the costs of services and a garage. The tenancy agreement confirms that the rent is to be paid monthly, in advance, on the first day of each calendar month. The tenancy agreement obliges the resident to pay the rent, and the other charges, without deductions whatsoever monthly and in advance.
  2. The tenancy agreement also allows the landlord to increase or decrease the rent, which includes allocating costs related to services, with no less than one calendar months’ notice and not more than once a year.
  3. The tenancy agreement states that the landlord:

a.     Can only end the tenancy by obtaining a court order for possession of the premises on one of the grounds listed in Schedule 2 of the Housing Act 1985.

b.     Is also ‘inter alia’ (among other things) entitled to commence proceedings to regain possession of the premises if ‘the tenant has not paid the rent which is due; or had persistently delayed paying the rent due’.

  1. The landlord’s Income Policy statement says that it will issue a tenant with a notice of seeking possession (NOSP), Section 21 notice or a notice to quit if the accounts are showing five (5) weeks of true arrears and/or consistent arrears for 5 weeks or more.
  2. Section 2.8 of the government’s ‘The Pre-Action Protocol for Possession Claims by Social Landlords’ protocol states that ‘After service of a statutory notice, but before the issue of proceedings, the landlord should make reasonable attempts to contact the tenant to discuss: the amount of the arrears; the cause of the arrears; repayment of the arrears; and the housing benefit or universal credit (housing element) position. The landlord should send the tenant a copy of this protocol’.
  3. The landlord has a 2 stage complaints process. The complaints policy states that the landlord will aim to respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days. In exceptional circumstances, the policy states that the landlord may take up to a further 10 working days to conclude the review. If this is likely, the landlord will tell the resident as soon as possible and give a date for the decision.

Response to the resident’s concerns about the Notice Seeking Possession (NOSP) it served on her on 2 December 2021 and the Pre-Action Protocol for Possession letter it issued on 4 August 2022.

  1. The landlord has provided statements documenting the resident’s rent account dating back to 28 May 2018. The statements show that the resident’s rent account has been in arrears since that time and at the time the NOSP was served, the arrears were £1,518.69, against a monthly rent of £534.86.
  2. The resident has not disputed that her rent account was in arrears at the time the NOSP was served but did dispute the total, stating that the rent element had been paid and therefore the arrears on the account should have been £1,059.41.
  3. Given that the rent account, at the time the NOSP was issued, showed more than 5 weeks of arrears and consistent arrears for 5 weeks or more, this would have breached the threshold for the landlord to consider serving a NOSP, in accordance with its Income Policy.
  4. However:

a.     In its stage 1 response, the landlord agreed that the NOSP should not have been served and stated that the officer that issued it had been unaware or had overlooked ‘‘the fact’’ that the resident was in dispute and awaiting a further response to a separate service charge complaint.

b.     In its stage 2 response, the landlord also stated that the NOSP served in 2021 was issued by a temporary member of staff who did not understand the previous history and the ‘‘agreements made’’.

  1. Whilst this Service has not seen evidence of any agreements between the parties regarding the arrears, it is evident that the landlord was aware of this dispute and that the Head of Head of Property Charges apologised to the resident on 6 December 2021 that she had received the NOSP. The Head of Property Charges also said that they would pick this up with the income team straight away and ensure that it did not happen again.
  2. Therefore, whilst the resident’s arrears may have breached the threshold that would have allowed the landlord to issue the NOSP on 4 December 2021, it was neither fair nor reasonable for it to have done so. That the notice should not have been served was acknowledged by the landlord in its stage 1 response, for which it offered the resident £100 compensation. The landlord also re-offered this in its stage two response.
  3. However, overall the landlord’s response to the resident’s concerns about the NOSP being issued, and the subsequent issuing of the ‘Pre-Action protocol for possession claims by social landlords’ was not reasonable. This is because:

a.     The resident initially contacted the landlord on 6 December 2021 to express her concerns at being served the NOSP on 4 December 2021. Despite the resident chasing the income team on multiple occasions, by the time of her initial complaint on 2 March 2022, she had received no response from them for almost 3 months. Whilst this was raised in both the resident’s initial complaint and her escalation request, the landlord failed to address this matter in either of its complaints responses.

b.     Despite the landlord providing the resident with assurances in its stage 1 response that the NOSP would not be acted upon, that a note had been added to the resident’s rent account and that she was free to dispose of the letter, it then issued her with a ‘Pre-Action Protocol for Possessions Claim by Social Landlords’ on 15 August 2022. Given that Section 2.8 refers to actions that the landlord should take ‘After service of a statutory notice’ and given the assurances the landlord had given the resident in its stage 1 response, it is understandable that the receipt of this document caused distress to her.

c.      Given that the issue of the NOSP and the ‘Pre-Action Protocol for Possession Claim’ letter were linked, and given that the landlord did not provide its final response until 9 December 2022, it was not reasonable for the landlord to not provide the resident with any explanation for that letter in its final response. In addition, whilst it is acknowledged that the resident had made her position clear about when and how she would clear the arrears, it would have been reasonable for the landlord to have taken the opportunity to seek to provide a reasonable alternative for repayment rather than just stating she had to pay the arrears and focusing on the legality of its actions.

  1. The above failures led to unnecessary upset, distress and inconvenience to the resident and failed to reasonably manage her expectations. Due to the accumulation of these failures, a finding of maladministration has been made. In order to put things right, the landlord has been ordered to apologise to the resident and to pay her an additional £300 compensation, bringing the total payable to £400.
  2. The landlord has also been ordered to review its handling of the resident’s concerns about the NOSP and pre-action protocol correspondence and consider learning it might take to ensure that similar failings do not happen in the future, such as staff training.

Handling of the associated complaint.

  1. The resident logged a formal complaint on 2 March 2022. The landlord issued its stage 1 response on 9 March 2022, 5 working days later and in accordance with the timescales set out in its complaints policy. However, the landlord’s response failed to state that it was its stage 1 response, did not explain to resident how to escalate complaint, nor did it make any reference to this Service. The response was also given a reference that related to contact and not a complaint and which the landlord said it believed was the reason for the resident’s limited contact from both the income and the complaints teams.
  2. There was then a long delay in the landlord providing its stage 2 response, it not doing so until 9 December 2022, 6 months after the resident had escalated her complaint on 5 June 2022. This was not a reasonable amount of time for the resident to have to wait for the landlord’s response and was significantly longer that the 20 working days timescale stated in its complaints policy.
  3. It is noted that there was a delay of approximately 1 month between the Head of Income requesting further information from the resident, on 25 August 2022, and the information being provided on 23 September 2022. However, this does not negate the fact that the landlord should have already provided its final response by that date. The resident had also been in frequent contact with the landlord about her concerns and so it is unclear why it was necessary for her to provide further information when this could have been sourced internally.
  4. In its final response, the landlord said that it had taken time to investigate the history of the resident’s complaints, including all the service charges issues, but failed to make any apology for the long delay in it providing its response. The landlord did re-offer the £100 compensation proposed in its stage 1 response but failed to:

a.     Provide any details of what it had investigated with regards to the charges, the only comment made being to say that all the resident’s enquiries had been responded to. 

b.     Address the resident’s concerns about the lack of response to her contact with the income team following the issuing of the NOSP.

c.      Address why she was sent the Pre-action protocol correspondence, given that she had been told in its stage 1 response that the NOSP had been sent in error. This was despite the stage 2 response re-iterating that the NOSP was ‘‘unfortunately’’ sent by a temporary member of staff that had not understood the previous history and ‘‘the agreements’’ made.

  1. To remedy these failures, the landlord has been ordered pay the resident £200 compensation and to carry out a review of its complaints handling in this case. Once completed, the landlord is to provide this Service with the outcome of that review and details of what actions it intends to take to ensure that its staff respond to formal complaints in accordance with both its own policy and this Service’s complaint handling code.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its response to the resident’s concerns about the Notice Seeking Possession (NOSP) it served on her on 4 December 2021 and the Pre-Action Protocol for Possession letter it issued on 4 August 2022.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the associated complaint.

Reasons

  1. Whilst the level of arrears on the resident’s rent account breached the threshold within the landlord’s Income Policy to allow it to issue the NOSP on 4 December 2021, it is evident from the landlord’s responses at stage 1 and stage 2 that this “should not have been served” and was “unfortunate”. As such, it was reasonable for the landlord to apologise to the resident and to offer her compensation, which it did. However, the landlord failed to acknowledge or apologise for the lack of response the resident received to multiple contacts she made to the income team between 6 December 2021 and 2 March 2022 about this matter. It also failed to address the issuing of the pre-action protocol letter when she had been told the NOSP ‘‘should not have been served’’.
  2. Whilst the landlord’s stage 1 complaint response was issued within the timescales set out in its complaints policy, it failed to address the resident’s concerns about the lack of response to her contact with the income team following the issuing of the NOSP. There was then a significant delay, of some 6 months, in it providing its final response. That response also failed to address the resident’s concerns about the lack of response to her contact with the income team, to provide any details of what it had investigated with regards to the charges nor to address why she was sent the Pre-action protocol correspondence, given that she had been told in its stage 1 response that the NOSP had been served in error.

Orders

  1. That within 28 calendar days of the date of this report, the landlord is to:

a.     Apologise to the resident for the failures identified in this report.

b.     Pay the resident a total of £600 compensation, made up of:

  1. £400 for its failures with regards to its response to her concerns about the NOSP and Pre-Action protocol correspondence. This includes the £100 previously offered, if this has not already been paid.
  2. £200 for the failure idenftied in its handling of the associated complaint.

c.      Review its handling of the resident’s concerns about the NOSP and pre-action protocol correspondence and consider learning it might take to ensure that similar failings do not happen in the future, such as staff training.

d.     Confirm to the resident whether the NOSP and Pre-Action Letters have both been formally withdrawn, if it has not done so already.

e.     To carry out a review of its complaints handling in this case. Once completed, the landlord is to provide this Service with the outcome of that review and details of what actions it intends to take to ensure that its staff respond to formal complaints in accordance with both its own policy and this Service’s complaint handling code.

f.        Confirm that it has complied with the above orders.