Midland Heart Limited (202214454)

REPORT

COMPLAINT 202214454

Midland Heart Limited

12 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:
1. Decision to end the resident’s licence.
2. Handling of the resident’s previous compensation payment.
3. Handling of the resident’s report of having been assaulted by the landlord’s staff.
4. Handling of the resident’s report of antisocial behaviour.
5. Record keeping.

Background and summary of events

Background

The resident is a licence holder of the property, which is a room within a shared block with communal facilities. The property is described as temporary living accommodation and its purpose is to prepare residents to move on to independent living in permanent accommodation. The resident was the licence holder of a similar property with the same landlord prior to moving into the current property. The landlord is a housing association.
The landlord had recorded that the resident has told it that he suffers from post-traumatic stress disorder (PTSD) and anxiety. He receives support from a mental health nurse.
Under the licence agreement the resident agrees to pay rent and charges set out within the agreement. The licence states that the resident does not have exclusive possession and that the licence is excluded under the Protection from Eviction Act 1977. Under the licence the landlord can end the licence for any reason by giving written notice, which will normally be 28 days. The licence also explains the landlord’s complaints procedure and the resident’s right to use this Service.
The Protection from Eviction Act 1977 made it an offence to evict or attempt to evict a tenant or licensee without an order for possession from the court. The Act also sets out that some types of tenancy or licence are excluded from the protection of the Act, meaning that the landlord can evict without a court order. Under section 3A(8)(h) a licence for a room in a hostel provided by a housing association is an excluded licence. However, under section 6 of the Criminal Law Act 1977, a landlord cannot use force or threats of violence to evict a resident.
The landlord’s income policy states that if rent is not paid regularly, or a payment plan is broken, it will serve a notice on the resident. If the arrears continue to increase the landlord will apply for possession of the property through the county court. Under the landlord’s income procedure, the landlord operates an escalation model for rent arrears. The procedure says that a resident will be served with a notice once their account is over £600 in arrears. The procedure says that action should be taken even if the resident is vulnerable, however additional support and help should be offered to the resident.
The landlord has an internal money advice service. Under its procedure residents can be referred for advice, and an advisor will assess the resident’s circumstances, any payment plans and benefits entitlement.
The landlord’s antisocial behaviour (ASB) policy defines ASB as conduct that has caused or is likely to cause harassment, alarm, or distress to any person; nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or capable of causing housing-related nuisance or annoyance to any person. Under its policy the landlord will risk assess reports of ASB and will take action to try to resolve it. The policy sets out the steps it can take and legal remedies it may be able to use.
The landlord has a staff code of conduct which says that it will “take action against any colleague whose behaviour shows a lack of respect for others, or which leads people to feel threatened.” In addition, it says that staff must keep relationships with residents professional.
The Equality Act 2010 places a duty on landlords not to discriminate, directly or indirectly, against residents based on their protected characteristics, of which disability is one. Further, the Act places a duty on landlords to promote inclusion and to make reasonable adjustments to assist residents.
The landlord’s complaint’s policy defines a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents.” The landlord operates a two stage complaints process. The landlord will respond to stage one complaints within 10 working days. If the resident remains dissatisfied, they can escalate their complaint to stage two. The landlord will respond to stage two complaints within 20 working days. The policy says that if the landlord cannot meet its timeframes, it will agree an extension with the resident. Under the policy, complaints which relate to issues which occurred more than six months previously are excluded from the complaints process.
The landlord has a compensation matrix which it uses to calculate compensation payments. This is a spreadsheet which includes the types of compensation or reimbursement the landlord might make. It also says that if compensation over £50 is awarded the landlord must check for rent arrears first, and that it will only pay up to £200 directly to a resident in arrears if they are keeping to a payment plan. The landlord has told this Service that it is currently reviewing its compensation guidance and once complete that it will be published on its website.

Summary of events

The resident’s licence started on 18 August 2020 and on a date not known to this Service the landlord wrote to the resident. In its letter it said that it hoped to offer the resident a direct offer of more permanent accommodation within six months, however this was subject to availability in the resident’s chosen areas.
On 13 May 2021 the resident’s mental health nurse, who will be referred to in this report as the resident’s nurse, wrote to the landlord to support a move to permanent housing for the resident. In her letter she clearly set out the resident’s mental health conditions and needs.
On 26 April 2021, 7 July 2021, and 5 August 2021 the resident sent the landlord messages via WhatsApp. In his messages he reported that a neighbour was causing ASB by singing and whistling, making threats and using drugs. The landlord replied on 14 July 2021, following a period of staff absence, to acknowledge the messages.
The resident’s nurse emailed the landlord on 6 October 2021 asking to discuss the resident’s options to move. The landlord and the resident’s nurse exchanged emails and arranged a call for 13 October 2021. This Service has not been provided with any record of or notes from this call. The resident’s nurse emailed the landlord on 26 October 2021 and said that she had spoken to the resident following the call. She said the resident asked her to act as a ‘go between’, or mediator. She said he had raised issues with the property and wanted to move to permanent accommodation where he could have a therapy pet.
The resident’s nurse and the landlord exchanged further emails on 9 November 2021. In these emails the resident’s nurse explained that she was going to visit the council housing advice office with the resident that day about his options to move.
The landlord’s records show that the resident was receiving housing benefit, however there was a shortfall, as his care charge was not eligible to be paid, and he had built up arrears. The rent statement shows that the resident had not made any payments since the start of the licence. On 18 November 2021 the landlord served a NTQ when the resident was in rent arrears of £712, although the figure stated was the arrears as of the following Monday. The NTQ said the reason it was served was due to rent arrears and invited the resident to agree a payment plan. The landlord sent an internal email on the same date, which said that two members of its staff served the NTQ in person by handing it to the resident. It also said that the resident filmed the members of staff.
The landlord has told this Service that the resident contacted it to set up a payment plan on 13 December 2021 and on 14 January 2022, however both were breached. The records show that the resident’s housing benefit was also suspended after 22 February 2022.
The landlord wrote to the resident on 21 February 2022. In its letter it said it had tried to call and speak to the resident in person without success. It asked the resident to call the landlord to discuss his options to move. The landlord also emailed the resident’s nurse.
On 9 March 2022 the resident’s nurse and the landlord exchanged emails to arrange a call for 14 March 2022 to discuss options for the resident to move. This Service has not been provided with any record of or notes from this call.
On 18 March 2022 the landlord wrote to the resident to give him notice that he would be evicted on 28 March 2022. On that date the landlord attended with private security, but the eviction did not go ahead as the resident refused to leave. The landlord changed the locks to the communal doors.
Between 12 May 2022 and 14 May 2022, the resident’s nurse and the landlord exchanged further emails. In these emails:
1. The landlord asked whether the resident’s nurse knew if the resident would be offered an alternative property; it said it was taking legal action but wanted to avoid having to use bailiffs to evict the resident.
2. The resident’s nurse said that the resident was working with the council regarding rehousing. She said she had offered to be a mediator between the resident and the landlord, but this had not happened. She said the resident said he was due compensation for flooding and had made a complaint.
3. The landlord said that the resident had declined to attend a joint meeting between the landlord and the resident’s nurse to discuss rehousing options.
4. The resident’s nurse said she had made referrals for the resident to other support services, but these had been rejected by the services.
The landlord and resident had a conversation on 10 June 2022 about the previous complaint the resident had made in relation to a flood at his previous property. The landlord wrote to the resident on 14 June 2022 to confirm that it had reviewed the previous complaint and agreed to pay compensation of £920 for damaged items, and £170 to reflect its service failure in resolving the complaint. The letter said that the total of £1,090 would be applied to the resident’s rent account which was in arrears.
On 20 July 2022 the resident called the landlord to make a complaint. The landlord acknowledged his complaint had been raised at stage one on 27 July 2022 by email.
The resident replied to the landlord on 1 August 2022 to say he would send some evidence to the landlord. The records do not show if any further evidence was provided. The landlord emailed the resident on 2 August 2022 to say that it would provide its complaint response by the deadline the following day.
On 3 August 2022 the landlord provided its stage one response. In its response it said:
1. The resident’s complaint was about:
  1. Having not received £1,200 compensation he had been awarded.
  2. The landlord trying to evict him, and not having given him a new tenancy or communal keys.
  3. That he had been assaulted by a member of the landlord’s staff.
2. It partially upheld the complaint as the compensation had not been paid and offered further compensation of £35 for this service failure. It explained that this would be credited to the rent account in line with its policy.
3. It said that it had decided to evict the resident as he had broken the terms of his licence agreement by being in arrears. It also explained the communication it had, and had attempted, with the resident. It said that as he was now a trespasser it would not provide a communal key to him.
4. It would address his report of being assaulted and would support the police in any investigation.
The landlord also gave information on how the resident could escalate his complaint.
On 8 August 2022 the resident sent four emails to the landlord. In these emails he said the landlord had:
1. Broken its safeguarding policy by informing members of its staff about his allegations of ASB but had taken no action.
2. Not honoured its letter about offering him more permanent accommodation within six months of him having moved into his property.
3. Failed to update its records with information about his mental health.
4. Abused him and had not considered his mental health.
5. Not given him communal keys in four months.
He also said in his email that he would have paid off the arrears he owed if he had been made an offer of more permanent accommodation and had received his compensation.
The landlord replied on 9 August 2022 to acknowledge the resident’s emails and again on 10 August 2022 to confirm it had escalated the resident’s complaint to stage two of its process.
On 7 September 2022 the landlord provided its stage two response. In its response it:
1. Confirmed its stage one response in relation to the resident’s compensation and said that the compensation was credited to his rent account on 5 September 2022. It also explained that this was its policy where the resident was in arrears and did not provide evidence relating to the lost items compensated for.
2. Confirmed its stage one response in relation to its decision to evict the resident and not provide communal keys.
3. Said that it had investigated the resident’s complaint about having been assaulted by a member of the landlord’s staff on 6 July 2022. It did not give the outcome of this investigation but asked the resident to share the outcome of the police’s investigation with it.
4. Explained that it was unable to investigate the resident’s complaint about its handling of ASB, in line with its complaints policy, as this happened over six months prior to the resident’s complaint.
5. Gave details on how to contact this Service if the resident remained dissatisfied.

Events after the end of the landlord’s complaints process

The resident contacted this Service on 5 October 2022.
On 15 November 2022 the landlord emailed the resident. It said in response to further evidence the resident had supplied the landlord with, it was willing to pay the £920 in compensation awarded to him directly. The records show that this amount was deducted from the rent account on 10 January 2023.
The court issued the landlord’s possession claim on 6 December 2022 and the first hearing took place on 10 January 2023. The records say that this hearing was adjourned until a second hearing on 17 April 2023.

Assessment and findings

The landlord’s decision to end the resident’s licence

The landlord decided to end the resident’s licence on 18 November 2021 when it served the NTQ. It then tried to carry out an eviction, as it was legally entitled to do, on 28 March 2021. As the resident had an excluded licence this could be carried out without legal proceedings. The landlord said that its decision to serve the NTQ and to attempt eviction was because the resident was in rent arrears, which was correct. The resident was in arrears above the £600 threshold for a notice to be served under the landlord’s income policy.
It is clear following the attempted eviction that the landlord’s relationship with the resident had completely broken down. The resident’s nurse had offered to be a mediator; however, the landlord said that it asked the resident whether he would meet with it and the resident’s nurse, and he declined; this Service has not been provided with any evidence of this. With this being said, the landlord has provided considerable evidence to show the actions it took to support the resident when it issued the NTQ in November 2021; these actions included: providing notice in the NTQ, not acting on the NTQ and working with the resident to support him in the move to a permanent accommodation, not proceeding with eviction, assisting with arrangements in paying the arrears, money advice referrals for support and continued help with maintaining benefit claims, engaging with the resident’s support networks, consideration of the resident’s income and expenditure, commencing injunction proceedings as opposed to eviction proceedings to moderate the resident’s behaviours so it could continue to engage with him. Having considered the actions the landlord took prior to the issue of the NTQ and after issuing the NTQ, it is this Service’s view that these were reasonable steps to support the resident.
Moving on, the Ombudsman notes that on 8 August 2022, the resident emailed the landlord and said he would have paid off the arrears he owed if he had been made an offer of more permanent accommodation and had received his compensation. He said he “withheld payment as some leverage”. While it is never advised to withhold rent, the landlord could and should have assisted the resident in resolving his complaint before deciding to serve an NTQ. The landlord knew about the complaint, and even if it had not determined it, it knew there was a possibility that the complaint, which related to flood damaged items, could have resulted in compensation. Its practice was to pay any compensation into a rent account when the resident was in arrears. With the benefit of hindsight, the compensation offered would have paid off the arrears. In addition, the landlord should have recognised the resident’s “expression of dissatisfaction” and could have supported the resident with a complaint about not having offered him permanent accommodation. If the landlord had taken this proactive and solution focused step, the resident may have not believed the only option he had was to withhold rent in an attempt at ‘leverage’.
Under the circumstances, there remains a considerable failing when considering the fact that the landlord served a NTQ due to arrears on the account; when it had an ongoing historical compensation claim with the resident and it was aware it owed the resident money that would have cleared the account. This Service considers that the landlord ought to have prioritised and processed the compensation payment so it could settle this aspect. The agreed settlement could then have been used to clear the arrears as is set out within its former policy. As the landlord did not prioritise this payment, and whilst it is understood the resident at times stopped engaging with the landlord, an NTQ was issued and resulted in considerable distress and inconvenience to the resident, all of which could have been avoided.
With everything above being considered, this Service finds there was maladministration in the landlord’s handling of this element of the compliant. This Service considers compensation of £400 to be a proportionate and reasonable amount. This is in line with this Services remedies guidance which states that remedies within the range of £400 may be used for cases where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant. The Ombudsman is entitled to make its own determination on the level of compensation based on its assessment of the impact of the landlord’s failures when dealing with issues a resident has raised. When considering this impact, the Ombudsman is not limited to a landlord’s compensation policy. Instead, it focuses on what it deems fair and reasonable in the circumstances of the case.

The landlord’s handling of the resident’s previous compensation payment

The resident raised as part of his stage one complaint, on 20 July 2022, that he had been awarded compensation of £1,200 from a previous complaint, due to damage caused by a leak to his items at his previous property. In its stage one response on 3 August 2022, the landlord said that it had previously awarded £1,090 in compensation on 14 June 2022, which it should have credited to the resident’s rent account in line with its compensation matrix. It admitted that it had not done this, apologised and offered a further £35 in compensation because of its service failure.
In its stage two response on 7 September 2022, the landlord again accepted that it had delayed further in crediting the compensation to the resident’s rent account, having only done this on 5 September 2022. It apologised again for the service failure.
The landlord followed its compensation matrix when it applied the compensation it awarded to the resident’s rent account, and it was reasonable for it to have done this. However, after the resident provided it with further evidence of his items which were damaged, the landlord agreed to pay £920 of the compensation for the tangible loss to the resident directly. This was a solution focused decision and showed that the landlord wanted to put things right.
However, having reviewed all the evidence, the landlord’s complaints policy, the tenancy agreement and the landlord’s website, this Service has been unable to find any document or statement which tells residents that it can deduct compensation awarded from rent arrears. This is included, although is not explicit, within its compensation matrix, which appears to this Service to be an internal document for the landlord’s sole use. Considering what is fair in all of the circumstances the landlord should have made it clear, in advance of any complaint from any resident, of its policy of applying compensation to rent arrears.
In relation to the delays in paying the compensation, which the landlord recognised as service failures, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles as well as our own guidance on remedies.
The landlord offered further compensation of £70 to reflect its failings, which was in line with its compensation matrix value for low level service failure. However, the effect on the resident was not low level; it is possible that had the landlord responded to the complaint and paid the compensation within a reasonable time, then the resident would not have been in rent arrears which triggered the NTQ and ending of his licence.
There was maladministration as the landlord took an unreasonable amount of time to pay the resident compensation, which had unintended but detrimental effects for the resident. Further, from the evidence the landlord had not made clear to the resident its policy of offsetting rent arrears before he made his complaint. This caused further inconvenience, time, and trouble to the resident, who had a legitimate expectation of being compensated directly for the damaged items, which in the end he was. To reflect the impact on the resident an order has been made that the landlord pay £400 in compensation.

The landlord’s handling of the resident’s report of having been assaulted by the landlord’s staff

Following an assault incident dated 6 July 2022, this Service has seen evidence that the resident and landlord’s agent provided an update to the landlord of each respective parties version of events. This Service has seen further evidence provided by the landlord which supports the fact that it placed the agent on restricted duties. It is unknown when these restrictions were enforced; however, it is this Service’s understanding that this was done soon after the incident was reported by both parties. With this being considered, the Ombudsman considers that the landlord’s actions were reasonable. As the report from both parties was of a serious nature, it was appropriate for the landlord to limit the agents duties whilst it undertook an investigation into what occurred.
The landlord confirmed that it allocated the case to the head of service to investigate due to the seriousness of the allegations. The landlord submitted evidence of the head of service’s contact to the resident. This service can see that the resident was contacted on 7 July 2022 and 8 July 2022 and an enquiry was made regarding the resident’s willingness to liaise with the head of service to discuss the incident. It is this Service’s understanding that the resident did not respond to these emails. This Service can see evidence in the email dated 8 July 2022 that the resident expressed he did not wish for the landlord’s agent (the agent the allegation was concerning) or head of service to contact him. The Ombudsman considers that the resident’s lack of response may have been due to the fact that he was being contacted by one of the individuals he had requested no-contact from.
Having considered everything, it was reasonable that the resident was contacted following the incident to gain more of an understanding of his version of events. While this Service appreciates the fact that the resident did not wish for the head of service to contact him, this Service finds the landlord’s position to be reasonable. As the agent in question was placed on restricted duties, it took away any element of bias, this is further supported by the fact that the landlord explained that it allocated the case to the head of service due to the seriousness of the allegations. As such, it was reasonable that the head of service contacted the resident. Furthermore, the resident did not provide any valid reason for requesting no contact from the head of service; therefore, this Service finds the communication to be reasonable.
Following the above, the resident raised a complaint on 20 July 2022 and escalated his complaint on 8 August. The landlord provided a stage one and stage two response on 3 August 2022 and 7 September 2022. Having reviewed the responses in relation to the information provided by the landlord regarding its investigation, this Service considers that the landlord ought to have outlined the steps it had taken in more detail. The landlord has explained that the resident was aware of the investigation; however, while this may be true, the purpose of the internal complaints responses is for the landlord to clearly set out its position. It would have been reasonable for the landlord to have clearly set out the actions it had taken to address the concerns raised and also set out the issues regarding lack of engagement by the resident and the effect this was having on the investigation.
The landlord provided evidence that it contacted the resident on 27 July 2022, 1 August 2022, and 2 August 2022 after his stage one complaint was raised. The emails show a customer experience officer contacting the resident to discuss the concerns raised and the final email shows the officer requesting that evidence be sent to the landlord. The landlord explained that the resident would not send the video evidence he had for consideration to assist with the investigation. Consequently, it could not determine whether it was appropriate to instigate disciplinary action against the agent. It confirmed that the agent remained on restricted duties to mitigate the potential risk to the resident. The Ombudsman considers that the landlord had taken reasonable steps at this stage to contact the resident and request for evidence to support its investigation. As the evidence was not provided by the resident, it is reasonable to conclude that this would have delayed the investigation.
The landlord explained that its internal investigation was superseded by the County Court injunction application. Consideration was given to the evidence submitted by both parties within the application. The findings of the Judge at a hearing on 1 March 2023 outlined that the resident had not been assaulted by the agent and the resident’s conduct both before and on 6 July 2022 amounted to anti-social behaviour.
With everything above being considered, this Service considers that while some minor failings are identified above, the landlord took reasonable steps in its handlings of the resident’s report of having been assaulted by the landlord’s staff. This Service has considered the actions it took to contact the resident about the incident, the actions it took to place the agent on restricted duties whilst it was undertaking an investigation, the steps it took to apply for an injunction which ultimately resolved the matter because the Judge made findings having assessed the full scope of evidence submitted by both parties. Under the circumstances, this matter is considered to be outside of jurisdiction. This is because the court has considered all of the evidence as a whole and made a ruling on the case. Furthermore, the resident had the opportunity to comment prior to any findings being made by the court, which he did. Under paragraph 41c of the Housing Ombudsman Scheme, the Ombudsman cannot consider matters that are the subject of court proceedings or were the subject of court proceedings where judgement on the merits was given, as is the case for this element of the complaint.

The landlord’s handling of the resident’s report of antisocial behaviour

The resident raised that his allegations of ASB had not been addressed in his email to the landlord on 8 August 2022. This was after he raised his stage one complaint on 20 July 2022 and the landlord had provided its response on 3 August 2022.
In its stage two response on 7 September 2022 the landlord said that as the matters complained about occurred more than six months prior it was unable to investigate under its complaints policy. The matters complained of occurred in April 2021 to August 2021 and so it was reasonable and appropriate for the landlord to follow its complaints policy and explain that it was unable to investigate that part of the complaint.
The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues. There was no maladministration.

The landlord’s records keeping

Throughout this investigation this Service has found that records have been missing which would have assisted the Ombudsman. These include:
1. Emails between the landlord and the resident’s nurse, which were supplied after the Ombudsman requested further information, but which should have been provided initially.
2. Notes or records of telephone conversations between the landlord and the resident’s nurse.
3. Evidence or records of calls between the landlord and the resident, and/or copies of letters sent to the resident.
This was service failure, which has caused further time and trouble to the resident. An order has been made that the landlord pay £100 in compensation to reflect this.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s decision to end the resident’s licence.
In accordance with Paragraph 41c of the Housing Ombudsman Scheme, the complaint in relation to the landlord’s handling of the resident’s report of having been assaulted by the landlord’s staff is no longer within the Ombudsman’s Jurisdiction. This is because the Ombudsman cannot consider matters that are the subject of court proceedings or were the subject of court proceedings where judgement on the merits was given.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s handling of the resident’s previous compensation payment.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s record keeping.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s handling of the resident’s report of antisocial behaviour.

Orders

Within four weeks of the date of the report, the landlord is ordered to:
1. Provide a written apology to the resident for the failures detailed in the report.
2. Pay directly to the resident compensation of £900, this is inclusive of the previous offer of £205, and breaks down as follows:
  1. £400 for the distress and inconvenience caused by its service failure in its decision to end the resident’s licence.
  2. £400 for the inconvenience, time and trouble caused by its handling of the resident’s compensation.
  3. £100 for the time and trouble caused by its record keeping failure.
3. Carry out a self-assessment against the recommendations within the Ombudsman’s spotlight report on Knowledge and Information Management (KIM).
4. The landlord must provide proof that it has complied with the above orders within the designated timeframes.