London Borough of Barnet (202215988)

REPORT

COMPLAINT 202215988

London Borough of Barnet

21 February 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

The complaint is about the landlord’s handling of the ending of the resident’s tenancy.

Background

The resident was a secure tenant of the landlord, a local authority, until 2020. The property was a 2 bedroom house.
Due to the resident’s literacy issues, a third party agency acts as his representative. For the purposes of this report, unless it is necessary to distinguish between them, all communications from the resident and the representative are referred to as coming from the resident.
On 16 March 2020 the UK government advised to stop non-essential contact and travel due to COVID-19 and on 23 March 2020 a national lockdown was announced. On 10 May 2020 the government announced a plan for lifting the national lockdown and advised people who could not work from home to return to work. Further restrictions were eased from June 2020 with non-essential shops reopening on 15 June 2020 and the relaxation of other restrictions, including the 2 metre social distancing rule on 23 June 2020.

Legal and policy framework

The resident’s tenancy agreement said he had to give at least 4 weeks’ notice in writing if he wanted to end his tenancy. He had to return all keys for the property and if he did not, it would continue to charge him rent, until it received them.
The landlord’s void properties procedure at the time said that when a resident was ending their tenancy because they had found alternative accommodation, they were required to give a minimum of 4 weeks notice. To end the tenancy, the landlord needed the keys to be returned and a completed ‘authority to clear’ (ATC) form. If documents were missing, the landlord would not formally end the tenancy until all documents were supplied.

Summary of events

On 2 March 2020 the resident told the landlord that he had accepted an offer of alternative accommodation. The landlord advised him that he would need to give 4 weeks notice to end his tenancy. It confirmed the end date would be 30 March 2020 and that the keys would need to be returned to its office on that day.
Later that month, the resident said he would return the keys by post and the landlord noted that it advised against this. It could not end the tenancy with just the keys and needed him to complete the ATC form, which it posted to him that day. It asked if he had an email address and noted that he said he did, but it was not connected and he would return the keys in person on 30 March 2020, but this did not happen.
In April 2020 the resident advised that his belongings were still in the property and he would collect them when lockdown was over, as he did not want to lose them. He asked if the landlord would store his belongings if he returned the keys at that time. Within internal communication, the landlord noted that it would not store the resident’s belongings. The following month the resident asked for the address to return the keys, which the landlord provided and advised him to use recorded delivery.
In June 2020 the landlord received the keys and on 10 June 2020 it asked the resident for his email address to send the ATC form electronically, as it could not end the tenancy without this. Five days later the landlord asked him to return the completed form. It noted that he declined to complete the form as he did not agree to pay the rent charges. The landlord told him that the tenancy would remain active until the ATC form was completed and noted that it posted another form to him that day.
In August 2020 the landlord noted that the resident declined to sign the ATC form but agreed to write a letter giving permission for the property to be cleared and his items disposed of.
The following month the resident said he had sent the letter 2 weeks previously but the landlord said it had no record of receiving this. It noted that it posted another ATC form to the resident and within internal communication it suggested starting the “peaceful possession procedure”, if it could not arrange for the form to be signed and returned.
In early October 2020 the resident asked why rent was still being charged when he had returned the completed ATC form twice and written a letter agreeing for the landlord to clear the property. The landlord asked him to write another letter, take a photo and send it in via text message. Later that month the resident said he had found someone to help him complete the form and the landlord noted it sent one to him.
On 29 October 2020 the landlord said it received the completed ATC form, which the resident had backdated to 28 February 2020. The form included that the resident had given permission for the landlord to “clear and destroy anything left behind”. The resident’s tenancy was terminated on 1 November 2020.
The resident complained to this Service in October 2022 that he had moved out of the property in February 2020, but had been unable to return the keys or clear his belongings. This was because of the national lockdown, and the landlord had not been considerate of this. In June 2020, the landlord agreed he could return the keys by post, which he did. He sent these with the required form, but the landlord said it only received the keys and not the form. The landlord charged him rent up until November 2020 and disposed of his belongings left in the property, with no warning. He asked the landlord to remove the rent arrears that had built up since he had left the property, reimburse him for lost items and compensate him for the distress caused. A letter was sent to the landlord asking it to provide a stage 1 response to the resident.
The landlord issued its stage 1 response on 4 November 2022, as follows:
1. Its procedure for terminating tenancies was to charge a 28 day notice period and so it was reasonable that it did this, but part of his notice period was during the COVID-19 national lockdown. It would have been impossible for him to finish clearing the property during that time, due to the restrictions in place, so it would only charge him a 14 day notice period between 2 and 15 March 2020.
2. There were changes in the COVID-19 restrictions and Government guidance between March and May 2020 and it accepted that this would have made arranging to clear his property and return the keys difficult. Therefore, it agreed to reverse rent charges for the period 16 March to 10 May 2020.
3. Between June and November 2020 his tenancy could only be terminated once he provided the completed ATC form. As he refused to do this, the rental charges between 15 June and 1 November 2020 were reasonable and would remain.
4. His belongings were left in the property until the signed form was received with permission to dispose of these. He had adequate time to clear these between moving out and the tenancy being terminated, even with several months of contact restrictions due to COVID-19; and so it would not consider compensation for loss of goods.
5. It partially upheld his complaint as it should have considered, and made allowances for, the difficulties he experienced in clearing his home during the COVID-19 lockdown. It accepted this would have caused him stress and frustration and compensated him a further 5 weeks of rental charges, covering the period 11 May to 14 June 2020.
Three weeks later the resident asked the landlord to escalate his complaint as he did not believe he should be liable for the rent charges between June and November 2020. He had returned the keys in June 2020, with the completed ATC form. There was nothing else in the envelope to identify which property the keys were for, other than the completed ATC form, and so asked how the landlord had known which property the keys were for if the form had not been with them. As the form was lost, he did not feel comfortable signing another form to say he was liable for the ongoing rent charges.
The landlord provided its stage 2 complaint response on 20 Decembre 2022. It did not uphold the complaint as the stage 1 response was “fair and empathetic”. It did not feel any further deductions were required as the resident had refused to sign the ATC form, despite it explaining that rent would continue to be charged until this was received. He had given permission for it to dispose of any goods left in the property and so it did not accept his request for compensation for these items.
In January 2023 the resident told this Service that he was dissatisfied with the landlord’s final response because:
1. It had refused to allow him to return the keys by post when he first asked, and told him he had to return them in person, even though travel was not permitted and he was vulnerable due to having COPD.
2. In March 2020, he told the landlord he was dyslexic, and because of this he did not have an email address and had difficulties reading and writing. This was not included or considered as part of the complaint responses.
3. The landlord had refused to address his point that it could only have identified the keys were for his property if the completed ATC form had been with them.
4. He was unable to collect his furniture during lockdown. He was told by the landlord that this had been removed and disposed of before the tenancy had ended. He later found out this was not the case and he could have collected his belongings. He gave permission for the property to be cleared because he believed this had already been done, but only discovered afterwards that his belongings had been there for him to collect.
5. The landlord had discriminated against him by repeatedly asking to communicate via email when he could not, due to his dyslexia. The landlord knew he had literacy issues because it had acknowledged that he did not send the form back, until he had a housing officer to help him. He told the landlord about his disability on several occasions, but it failed to make reasonable adjustments for him.
In January 2024 the landlord told this Service that it had no record that the resident had dyslexia and it had only been made aware that he had COPD during a telephone call in April 2022.

Assessment and findings

Scope of investigation

The resident has alleged that the landlord has discriminated against him in respect of his disability and failed to make reasonable adjustments for him in line with the Equality Act 2010. The Ombudsman is unable to determine whether there has been a legal breach of this legislation as this would be a matter for the courts to consider (reflected at paragraph 42(f) of the Scheme). However, consideration has been given to whether the landlord’s actions were reasonable in the circumstances and whether it gave due regard to its responsibilities under the Equality Act 2010.
The resident has told the landlord that this this matter has negatively affected his mental health. The Ombudsman does not doubt the resident’s comments, but it is beyond the remit of this Service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s ill-health. The resident may wish to seek independent advice on making a personal injury claim if he considers that his health has been affected by any action or failure by the landlord (reflected at paragraph 42(f) of the Scheme). While the Ombudsman cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any service failure by the landlord.

Handling of the ending of the resident’s tenancy

When the resident told the landlord he had found alternative accommodation, it was reasonable that it asked him to give 4 weeks notice as per the terms of his tenancy agreement, as detailed above. It was also reasonable that it asked him to complete the ATC form in line with its void properties procedure, as detailed above. In addition to being a procedural requirement, the ATC form was the resident’s formal, written notice that he wanted to end his tenancy. Therefore, it was a legal obligation for the landlord to ensure it obtained this, rather than just relying on verbal notification.
Between March and October 2020, the landlord contacted the resident on a number of occasions regarding the return of the keys and ATC form and warned him of the consequences of not returning them, which was appropriate. During this period it said that it sent the resident the ATC form on at least 4 occasions to complete and gave alternative options for him to return it or provide a letter. These were sensible and practical suggestions, particularly in light of the restrictions in place which would have prevented him from returning them in person for some of that period.
After the resident returned the keys in June 2020, the landlord continued to chase him for the completed ATC form for a further 4 months before this was returned. While appropriate that it continued to chase this, the landlord could have considered whether there were any other steps it could take to bring the tenancy to an end as it knew that the resident had moved out and had secured alternative accommodation, for example, service of a notice to quit.
This would have been sensible considering the landlord noted that the resident declined to complete the form in June and August 2020, meaning it was unclear when, or if, it would ever receive it and be able to bring the tenancy to an end. From the records provided, there was an internal suggestion about starting peaceful possession proceedings in early September 2020, but there was no further mention of this and the tenancy continued to run for a further 2 months.
The resident said that he returned the completed ATC form on 2 occasions and a letter giving authority to clear the property, but the landlord said it did not receive these and, from the evidence provided, there is no record that it did. It is understandable that the resident would not keep copies of the completed forms or letter that he sent and so would not necessarily have evidence to support this assertion. Similarly, an absence of evidence by the landlord does not categorically prove that it did not receive these documents. While frustrating for the resident, the Ombudsman is unable to reach a final conclusion on this point.
The resident said that the landlord refused to allow him to return the keys by post when he initially asked at the end of March 2020. In contrast, the landlord said that it did not refuse, but advised against this. The landlord records support this position, but it is understandable that the resident may have misunderstood this and it would have been helpful for the landlord to be clearer in its response. This would have been particularly important at the time as there was a national lockdown with travel restrictions in place that would have impacted the resident’s ability to return the keys in person and so an element of flexibility would have been sensible in the circumstances.
The resident said that he told the landlord he was dyslexic in March 2020, and for this reason, could not use email as a method of communication. While the Ombudsman does not dispute the resident’s comment, from the landlord records provided, there is no evidence of this. A record of the telephone conversation was made, which included reference to email communication; however, there is no mention of the resident informing it that he was dyslexic during that call or at any other time.
The resident said that the landlord was aware that he had literacy issues because it had acknowledged that he needed a housing officer to help him complete the ATC form in October 2020. However, needing help to complete a form is not always an indication that someone has literacy issues and there could be a variety of reasons why someone may ask for help with this type of task. Also, the resident had previously told the landlord that he had returned the completed form twice and a hand written letter and so it was reasonable that the landlord would not interpret this as an indication of literacy issues.
Where a landlord is aware that a resident has a disability or vulnerability, it is important that it considers this as part of its wider service delivery, including implementing any reasonable adjustments required. A landlord can only be expected to do this where it is aware of the disability or vulnerability. In this case, as there is no evidence that the landlord was aware of the resident’s dyslexia, it could not have been expected to consider this as part of its wider service delivery or implement any reasonable adjustments required.
The landlord declined to provide compensation for items it disposed of that had been left in the property. As the resident signed the ATC form giving consent for the landlord to clear and destroy any items left behind, it was reasonable that it declined to pay compensation for these items. In contact with this Service, the resident said that he was told by the landlord that his items had been disposed of before the tenancy was ended and this was the only reason he had not collected them, but from the records provided, there is no evidence of this. In fact, the landlord records are clear that the resident had expressed an interest in wanting to collect the items from the property.
There have been a number of instances where the resident’s recollection or understanding of conversations differs from the landlord’s records. The Ombudsman is unable to determine exactly what was said during these conversations or the reasons for this. It is reasonable that at times, misunderstandings can occur through no fault of either party and in order to avoid this, where possible, it is good practise for landlord’s to confirm any important conversations or key messages in writing after a verbal discussion. By doing this, the landlord can ensure its messages are clear and any misunderstandings are resolved in a timely manner.
In this case, the landlord did not follow up any of its conversations in writing. The resident has indicated that he has trouble reading and writing because of his dyslexia, and in these circumstances, it may be appropriate for landlord’s not to rely too heavily on written communication, as a reasonable adjustment. However, as the records indicate that the landlord was not aware of the resident’s literacy issues, there is no clear reason why it did not follow up the conversations in writing. Its failure to do this amounts to maladministration and left the resident confused about some of the information given.
It was fair and reasonable that the landlord removed some of the rental charges in recognition of the difficulties the resident would have had in clearing the property during the COVID-19 lockdown. However, the landlord only did this up to 10 May 2020, which was when the government announced a plan for lifting the lockdown. It was not until 15 June 2020 when restrictions really started to ease, which means that it would have been fair to remove an additional 5 weeks rental charges in recognition of this, up to 14 June 2020.
The landlord did agreed to remove a further 5 weeks worth of charges, but this was in recognition of the impact this would have had on the resident. This was fair and showed that it took this matter seriously but it should have removed these weeks in addition to the 5 weeks in light of the COVID-19 restrictions being in place longer. Therefore, the landlord should have removed charges up to 19 July 2020. An order has been made below for the landlord to reverse the rental charges on the resident’s account up to this date and confirm in writing that it has done so.
While frustrating for the resident that the landlord declined to remove the charges in full, this decision was reasonable, as it had told him what he needed to do to bring the tenancy to an end, and he had declined to do so. The resident has explained his reasons for declining to complete the form, which are understandable, but it was still his responsibility to ensure the required written notification was provided to the landlord. While the landlord could have done more to consider actions it could have taken to bring the tenancy to end, this did not remove the resident’s responsibility to provide the required documents. An order has been made below for the landlord to contact the resident to discuss and agree a repayment plan for the remaining amount.
As part of his stage 2 escalation, the resident queried how the landlord knew the keys were for his property, when it received them in June 2020, if the completed ATC form was not with them. This was a reasonable question, but the landlord failed to respond to this within its final response, which would have been frustrating for him.
The landlord has told this Service that when the resident asked about returning the keys, it advised him to put a note containing the address in the envelope. This advice was not documented within the landlord’s records and as it required the resident to return the completed ATC form, it is unclear why it would suggest returning the keys with a note, rather than the completed form.
The landlord has told this Service that it “assumes” the resident included a note with the keys, and this was how it knew they were for his property. However, there is no evidence or record that this was what happened, which is a concern. Due to a lack of records, the Ombudsman is unable to reach a final conclusion on how the landlord identified the keys were for the resident’s property, which will be frustrating for him.
It is important that landlords keep detailed records so they can account for their decisions and actions to residents and this Service, where required. Its failure to do that in this case amounts to maladministration and has left the resident with unanswered questions about this issue. An order has been made below for the landlord to provide staff training on the importance of keeping detailed records, particularly in relation to keys being returned and completed ATC forms. A further order has been made to pay the resident £200 compensation and the landlord must consult with the resident prior to making the payment, to confirm whether he wants this amount paid to him directly or paid onto the rent account.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the ending of the resident’s tenancy.

Reasons

It was reasonable that the landlord expected the resident to give 4 weeks notice to end his tenancy and complete the ATC form. It told him this on a number of occasions and provided several copies of the form, as well as different ways to return this and the keys, which was appropriate due to contact and travel restrictions in place because of COVID-19. The landlord could have done more to consider whether it could have brought the tenancy to an end earlier, but this did not remove the resident’s responsibility to provide the required written notification.
The landlord appropriately reversed some of the rental charges in light of the COVID-19 restrictions, which was fair, but it did not go far enough as the restrictions were in place longer than it allowed for. It also appropriately considered the impact on the resident and provided redress by reversing some of the charges.
The resident said he told the landlord he was dyslexic and that it was aware of this but the records do not show this and so the landlord could not have been expected to make reasonable adjustments when it was not aware of the resident’s disability. There were a number of incidents where the resident’s understanding of conversations and the landlord records do not match up. While understandable that misunderstandings can occur, it is sensible for landlord’s to confirm important conversations or advice in writing, which it did not do in this case. This left the resident believing that his items had already been cleared from the property when they had not. It is not clear how the landlord identified that the keys were for the resident’s property, when received and the lack of records has left the resident and this Service, with unanswered questions about this issue.

Orders

Within 4 weeks, the landlord is ordered to:
1. Reverse rental charges on the resident’s account up until 19 July 2020, and provide written confirmation to the resident that it has done this.
2. Contact the resident about the remaining rent arrears to agree a repayment plan for these.
3. Pay the resident £200 compensation for its handling of the ending of his tenancy. The landlord must consult with the resident prior to making the payment to confirm whether he wants this amount paid to him directly or paid onto the rent account.
The landlord to provide evidence of compliance with the above orders to this Service within 4 weeks.
Within 8 weeks, the landlord is ordered to provide staff training on the importance of keeping detailed records, particularly in relation to keys being returned and completed ATC forms.
The landlord to provide evidence of compliance with the above order to this Service within 8 weeks.