Incommunities Limited (202207018)

REPORT

COMPLAINT 202207018

Incommunities Group Limited

12 July 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 landlord’s:

a.     Handling of the resident’s eviction.

b.     Handling of the resident’s rent account.

c.      Response to the resident’s request for service charge refund.

d.     Response to the resident’s concerns about staff conduct.

Background

2. The resident lived in a one-bedroom flat owned by the landlord. His assured shorthold tenancy commenced on 2 March 2020, and ended on 17 April 2022. Records show that the landlord later became aware that the resident has mental health issues.
3. The Landlord issued two warning letters on 17 June and 18 June 2021, to the resident. Following a meeting with him on 12 July 2021, it issued a Notice seeking possession (S21 Notice) on 16 August 2021. The landlord stated that the resident had breached several terms of his Tenancy Agreement. It advised that he was to move out by 20 December 2021.
4. The resident appealed this decision. On 19 November 2021, the landlord did not uphold his appeal. However, it granted the resident an extension until 15 February 2022 to move out of the property. The landlord stated it had commenced proceedings for possession. However, the landlord did not serve the resident its claim as it discontinued proceedings when it was informed that the resident had moved out on 28 March 2022.
5. On 17 May 2022, the resident complained about landlord staff conduct during his tenancy at the property and rent arrears that he disputed on his rent account. In response to the resident on 25 May 2022, the landlord did not uphold his complaint. It stated most of the issues raised were addressed to in its appeal response of the Section 21 Notice; it also said that its correspondence with his support worker following leaving the property was professional. It said it had provided examples of the correspondence and a copy of the rent statement at the time and had explained the resident was not in credit.
6. On 13 June 2022, the resident requested escalation of his complaint. The resident disagreed with the landlord’s response to his concerns about staff conduct and the reasons that had been stated in the Section 21 Notice. He said that the landlord owed him a rent reimbursement and that the landlord had not advised him of the date for the possession hearing. He also  complained about how a landlord staff member had handled his eviction appeal.
7. In its stage two response of 29 June 2022, the landlord said that it had reviewed the correspondence with the support worker related to the rent arrears and the possession order information and could not substantiate the resident’s claim. It also said that in February 2022, it had taken steps to apply for a possession order. However, as the resident vacated the property in March 2022 and as such terminated the tenancy, it was not necessary for the landlord to progress the possession order further. As such the issues raised throughout the eviction was not a matter it could investigate under its complaint’s process as it had reviewed them already as part of the Section 21 Notice appeal.
8. The resident escalated his complaint to the Ombudsman. In his letter of 14 September 2022, he stated, he was upset about the treatment he and his support workers had received during his tenancy and eviction. He also referred to his inability to use communal facilities due to Covid -19 restrictions. He considered that the landlord should refund the service charge paid for these facilities. The resident also stated that he had incurred high rent arrears which he did not agree with.

Jurisdiction

9. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the 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.

The landlord’s handling of the resident’s eviction

10. In accordance with paragraph 42(f) of the scheme, which states that ‘the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, concern matters where a complainant has or had the opportunity to raise the subject matter of the complaint as part of legal proceedings’, the complaint about how the landlord handled the resident’s eviction is outside the Ombudsman’s jurisdiction.
11. The landlord, using its unacceptable behaviours policy, initiated the eviction process by serving a Section 21 Notice in August 2021. The grounds for the notice related to allegations that the resident was verbally abusive to its staff member in a meeting from 17 June 2021, when it decided to restrict him from using communal facilities and a consecutive meeting from 12 July 2021. The resident appealed the Section 21 Notice and the landlord refused his appeal in November 2022. As such, it proceeded with the eviction process.
12. The resident raised the above grounds for eviction and the handling of the eviction process as part of his complaint to this Service, and particularly:

a.     The landlord’s allegations that on 17 June 2021, he had been verbally abusive to its staff member and pinned a picture of a dog on his flat door and implied it was the staff.

b.     Its decision on the same day to restrict his use of communal facilities.

c.      His dissatisfaction at the meeting held on 12 July 2021 between the landlord, him and his support worker, where the events from 17 June 2021 were discussed.

d.     The landlord’s decision of 14 July 2021, to issue him a S21 notice and the subsequent issuing of the notice to him in which the landlord stated he had breached his tenancy agreement.

e.     The landlord’s refusal to allow his appeal against the above decision.

13. In February 2022, the landlord confirmed its refusal of appeal. While it provided an extension for vacating the property, it progressed the eviction further and advised the resident that it had commenced legal proceedings.
14. The landlord stated in its stage two response it had filed a possession claim against the resident, but because the resident vacated the property, it had decided not to proceed with it. While the landlord’s decision to discontinue the possession application was based on the resident’s action to vacate, the resident actually had an opportunity to present his concerns to the courts had he chosen to stay at the property. This would have been the most suitable means for these issues to be considered and responded to and it was therefore appropriate that the landlord refused to escalate this aspect of the complaint down its internal complaints policy when he subsequently attempted to raise it during his formal complaint. For the same reason, the complaint falls outside the Ombudsman’s jurisdiction. The Courts were the appropriate body to respond to the resident’s concerns and he had the opportunity to present these concerns through the possession hearing applied for by the landlord.

The resident’s request for a refund of service charge. 

15. The complaint about the resident’s request to be reimbursed for service charges is also outside the Ombudsman’s jurisdiction – in accordance with paragraph 42(a) of the Scheme which states that ‘the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaint procedure’
16. The resident raised issues with paying service charges for communal areas which he was restricted from using. The Ombudsman has seen no evidence that the service charge reimbursement aspect of the complaint was raised within the landlord’s internal complaints process. As such, the landlord has not had a chance to address this aspect of his complaint. If the resident would like to pursue this part of the complaint, he may raise it as a new complaint.

Assessment and findings

Scope of Investigation

17. The resident has stated he had concerns about staff conduct for two years and that he desired the Ombudsman to investigate this.
18. Whilst the resident’s concerns about the landlord are noted, this investigation has primarily focused on the landlord’s handling of the resident’s concerns from June 2021 onwards. This is because residents are expected to raise complaints with their landlord promptly so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’ and while the evidence is available to reach an informed conclusion on the events that occurred.
19. On June 11, 2021, the resident raised concerns to the landlord about staff conduct in June 2020 during Covid-19. The landlord dealt with part of the complaint in its letter of 18 June 2021. However, it stated further, it would not investigate the matter any further. This is because the resident could have reported any perceived rudeness from the staff member at the time. This was in line with its complaint policy, which states it will not consider complaints concerning issues that occurred over six months previously unless specific circumstances warrant an investigation. The Ombudsman will not consider this aspect either, as it was not brought to the landlord’s attention within the timeframes specified.
20. The Ombudsman also cannot consider the resident’s complaint about staff conduct in July 2021 during a meeting between the landlord, resident and his support worker. This is because this part of the resident’s complaint was considered under the eviction procedure and was a primary reason for serving an eviction notice.
21. The resident has also stated that the issues with the landlord affected his mental health greatly and that it breached his fundamental human rights and defamed him. Whilst the Ombudsman can take into consideration how the landlord’s failures impacted the resident, unlike courts, we do not have the expertise to make findings of any of the above.

The landlord’s administration of the resident’s rent account

22. The resident has stated that he has incurred high rent arrears resulting in extreme financial hardship. In its stage two response, the landlord attached a copy of the resident’s rent account and advised the resident that at no point was his account in credit. It concluded that it therefore did not owe him any reimbursement on his rent account.
23. The Ombudsman has considered all the evidence relating to the resident’s rent account. The DWP was paying the housing element of Universal Credit (UC) to the landlord while the resident was paying his rent arrears. This was clearly communicated to the resident in the landlord’s communication with his support worker and in its stage 2 response. The landlord provided his rent account statement and explained the two parts of the payments from the resident and DWP.
24. The rent statement provided by his landlord shows he was in deficit throughout his entire tenancy. It is appreciated that the rent arrears incurred by the resident might have caused him financial hardship. However, there is no evidence to suggest that this was caused by the landlord’s administration of the resident’s rent account. As such the Ombudsman has found no maladministration in relation to the management of the resident’s rent account.
25. The Ombudsman notes that the service charge is part of the rent in this case and if the resident considers that he is owed a reimbursement for the service charge part of the rent, he should raise this under the landlord’s internal complaints process as stated above in the jurisdictional section. Overall, the landlord’s response to the rent account administration was reasonable and appropriate as it has taken seriously the resident’s complaint and reviewed his rent statement. It was transparent and provided all the evidence it has taken into consideration.

The landlord’s response to resident’s concerns about its staff conduct during his tenancy

26. As per the above scope of investigation, this report will only focus on specific events relating to staff conduct immediately before the resident moved out of the property.
27. The resident has expressed dissatisfaction about the landlord’s staff conduct. The Ombudsman will not form a view on whether staff members’ actions were appropriate. Instead, it is this Service’s role to decide whether the landlord investigated and responded to the complaint and took proportionate action based on the information available to it.
28. In his complaint to the landlord and to this scheme, the resident stated that staff were rude and unprofessional to his support workers during his tenancy. The landlord disputes this. In its stage two response, the landlord stated it had reviewed all the communication records and could not substantiate the resident’s complaint. It stated further that there was no evidence of his support workers making any complaints about this.
29. Whilst these are disputed facts, there is no evidence in the correspondence to suggest that the support workers experienced any unprofessional behaviour. The landlord provided correspondence with the support workers evidencing that it acted in a respectful way. Additionally, in its investigation the landlord relied on its communication records with the resident support workers and was able to take an informed decision.
30. The Ombudsman’s role is not to make a decision based upon a balance of probabilities about whether or not something in dispute did or did not take place. Instead, its role is to conclude whether or not the landlord responded reasonably to the resident’s concerns, including reliance on suitable evidence where appropriate. In this case the landlord acted reasonably and appropriately in reviewing its communication records with the resident’s support workers before reaching a conclusion.

Determination

31. In accordance with paragraph 42(f) of the Housing Ombudsman Scheme, the landlord’s handling of the resident’s eviction is outside of this Service’s jurisdiction.
32. In accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the landlord’s handling of the resident’s request for a service charge refund is outside of this Service’s jurisdiction.
33. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s response to the resident’s reports about its administration of his rent account.
34. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in relation to the landlord’s response to the resident’s reports about staff conduct.