One Manchester Limited (202016223)

REPORT

COMPLAINT 202016223

One Manchester Limited

30 November 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:
   1. Handling of reports of the resident’s alleged subletting.
   2. Handling of the resident’s reports of discrimination.
   3. Complaint handling.

Background and summary of Events

Background

2. The resident is an assured tenant of a 1 bedroom flat and his tenancy began in June 2017.
3. The landlord has explained to this service that it does not have a specific subletting policy, and such issues are dealt with through its starter tenancy policy and tenancy policy. The landlord’s tenancy policy states that the resident’s tenancy can only be terminated through a legal court order.
4. The landlord’s complaints policy says it would not consider matters where legal proceedings had started or concluded as complaints. It also says it would not consider issues which took place over six months prior to the attempted complaint but could apply its discretion where there was a valid reason for the delay. It states it will contact residents and provide an opportunity to comment on any adverse findings at stage 1 and provide a written formal response within 10 working days of receipt of the complaint. If a resident remained unhappy, they could escalate to stage 2 within 1 month of its stage 1 response. It would then provide a further opportunity for the resident to set out their position and provide a response within 20 working days.

Summary of events

5. The landlord received allegations on 4 November 2020 from an individual that the resident had sublet his property.
6. On 6 November 2020 the landlord visited the resident at the property to discuss the allegations of subletting. It confirmed to him in writing on 16 November 2020 what was discussed. It explained:
   1. It had received information he was not living at the property.
   2. Evidence had been submitted to it suggesting he was renting his property to another person between 16 October 2017 to 10 October 2020. The evidence also suggested he was living at another address in another city.
   3. He advised that he had been living at the property not anywhere else and it was his main home.
   4. He had always lived at the property since his tenancy started.
   5. He was shocked at the allegation and insisted it was false.
   6. The address on the evidence provided belonged to his parent’s property.
   7. He wanted to be provided with all the evidence against him.
   8. The landlord confirmed he was present at the property at the time of its visit.
   9. He confirmed his identity and showed council tax and utility bills which were all in his name.

It informed him that it had considered his request for information provided against him, investigated his subject access request (SAR) and it would not be providing the documentation he requested. It then further advised him about the clause in his tenancy agreement he may have breached and that it was reviewing all the evidence it had obtained, and discussing his case with its solicitors to decide if it would proceed with any legal action against his tenancy. It said once it had decided, it would contact him.

7. The landlord spoke with the resident on 2 December 2020 and advised him that it would be serving him the notices within the next couple of weeks, with the intention of terminating his tenancy and starting legal action against him. It said this gave him 28 days to end his tenancy and told him following legal advice, it believed he was subletting the property. It explained to him when the notices expired, if he had not ended his tenancy, it would then commence legal action and he would be provided with the evidence against him at the appropriate time. The resident told the landlord he had not done anything wrong and queried how he would be compensated if the legal challenge failed. It told him to seek independent legal advice. The landlord provided the resident with a notice to quit and a notice of seeking possession on 11 December 2021, due to breaches of tenancy. It explained the breaches of the tenancy agreement including subletting, non-occupation, causing ASB, nuisance and harassment.
8. The resident raised a formal complaint with the landlord on 16 December 2020. He expressed dissatisfaction at the landlord’s investigation and explained he had tried to prove he was living at the property by logging into multiple utility platforms that showed him as the bill payer for the property. He told the landlord the subletting contracts were falsified but despite offering to provide evidence which showed that he occupied the property for 3 years, he was served with an eviction notice without his evidence being reviewed. He had contacted the police about the fraudulent documents, and it was being investigated. He explained he had gained legal representation, explained the impact of the situation on his mental health and the inconvenience it caused him. He stated he would like the eviction notice to be put on hold and a further independent investigation conducted.
9. Between 18 December 2020 and 23 December 2020, the landlord discussed internally the approach to take about the resident’s complaint to manage his expectations. It responded and told him due to the ongoing legal action; his complaint would not be going through its standard complaint’s procedure at the time.
10. On 11 February 2021, the landlord spoke with the resident’s neighbours who provided conflicting information about who lived at the property.
11. In March 2021, the landlord’s solicitors wrote to the resident and said it had evidence he was subletting the property between 2017 and 2020 and this was a breach of his tenancy agreement. It then stated the landlord would conduct ad-hoc and arranged visits to his property.
12. The resident then contacted this service and explained the situation, stating he raised the issue with the landlord on 10 October 2020 and brought his formal complaint on 12 December 2020 about his occupancy rights. He also reiterated the effects of the situation on his health, and said he wanted an impartial investigation to be completed and an explanation provided about why it did not accept his evidence before pursuing an “illegal eviction” as a course of action. Following the Ombudsman’s intervention, the landlord provided the resident with an acknowledgement of his complaint.
13. In April 2021, the resident spoke with the landlord and he highlighted it had visited him “with an agenda to evict”. He also raised issues around the landlord’s investigation and the staff involved in his complaint who refused to accept it in December 2020. He also said that it had not spoken to his neighbours or followed process. The landlord said it had explained to him that the person he had spoken to was not the person he had complained about. It then contacted him, apologised for the delay in responding to his complaint and said it would provide him with a response by 16 April 2021.
14. The landlord provided its stage 1 response on 16 April 2021 and explained the resident’s complaint was about the legal proceedings concerning the eviction process, how his previous complaint was dealt with and accusations of racial discrimination. It said it had investigated his complaint and acknowledged parts of its service had not been delivered in line with its expected standards, and it apologised for the service failure and its impact on him. It apologised for the delay in responding and thanked him for taking the time to discuss his complaint with it on 9 April 2021. It said he had raised concerns that the matter was not investigated fully and asked it to also address other issues he had raised such as its investigation with his neighbours, acceptance of his proposed evidence, and request for the evidence against him. The landlord:
    1. Explained a third party had provided evidence that he was subletting, and the steps it took in its investigation of the reports including speaking with neighbours who provided inconclusive evidence.
    2. Said although he had provided evidence of the utility bills being in his name, the person who reported the issue had said the costs they paid for the property included the bills.
    3. Stated it did not accept his CCTV evidence as it was informed, he made regular visits to collect the rent which was paid in cash. It acknowledged it should have accepted his offer of the CCTV and provided this to its solicitors alongside the other evidence before instigating legal action.
    4. Although he said he had deliveries from eBay to the property, it highlighted, it had been made aware by its member of staff that he had not offered any information or evidence about this at the time of the meeting. It said it had contacted the police and they had advised him it was a civil matter.
    5. Told him it did not pursue civil proceedings as the witness who reported the issue subsequently withdrew. Although he had asked for information on who had reported the issue to it, it would not be providing this information as it did not have their permission to do so. It also said that it did not deal with his complaint in December 2020 as a complaint in line with its policy, as it had already started legal proceedings against him for the matter he was complaining about.
    6. Explained it had investigated his claim of racial discrimination, however during its investigations and after speaking with the members of staff concerned, it found that they had only acted on evidence that was provided by a third party. As such it had found no evidence or information indicating in any way that he was racially discriminated against.
15. The resident then contacted the Ombudsman 10 months later, on 2 February 2022 and discussed his case. He explained he had received the stage 1 response on 16 April 2021 and was dissatisfied with the response. He said as a resolution, he wanted compensation for ill health and how the landlord’s actions affected his performance at work. On the same day, this service asked the landlord to provide him with a response following the delay in escalation.
16. Between 4 February 2022 and 10 February 2022, the landlord spoke with the resident to identify the issue and decided to treat it as a stage 2 complaint. It said he had identified he wanted the matter reviewed from a neutral standpoint. He reiterated his concerns and wanted to know why he was not contacted directly regarding the evidence it had. He also implied racism in the motivation of the landlord’s staff to pursue an eviction. He felt the answer in the stage 1 response did not address his reports of racial discrimination by its staff sufficiently. He stated he was dissatisfied with the procedure that was followed and wanted a full explanation of the process and that it demonstrated that it followed it. He told the landlord he was expecting compensation for his legal costs, stress caused, and income loss, as the stage 1 response significantly contributed to his ill health and him being off work for several months.
17. The landlord provided its stage 2 response on 11 March 2022. It thanked him for speaking with it on 7 March 2022 to fully explain his complaint. It also said it appreciated him taking the time to go over the events and the issues he experienced. It said:
    1. Following its receipt of information relating to the alleged subletting of its property, it investigated prior to commencing eviction proceedings. He contended that insufficient consideration was given to evaluate the evidence he presented to refute the information it received.
    2. He considered its approach to the investigation was indicative of institutional racism within its organisation.
    3. He had also expressed dissatisfaction with the process it followed, and he suggested its team did not follow its process.
    4. To address his complaint, it had considered the information from him and those involved in the case and said that it found that its action was appropriate. This was because the evidence he referred to was insufficient to adequately refute the information presented to it about the subletting.
    5. Having discussed his complaint of racism with him, he had not presented it with information that supported his complaint. It was unaware of any reason or indication that racism had been evident in the handling of the case, either direct or indirect, and at any stage.
    6. It had reviewed the process followed and it had found it to be both reasonable and in keeping with what would be expected, in the circumstances.
    7. In relation to his request for it to send evidence directly to him, which supported the resulting case against him, it said it would not be sent to him as it had previously explained. It said it would not be recommending any further action, redress or compensation and the complaint was therefore complete.

Assessment and findings

Scope of investigation

18. The resident has raised issues about the impact of the landlord’s actions on his mental health and in turn led to a loss of earnings. The Ombudsman is unable to draw conclusions on the causation of, or liability for, any impact on health. Personal injury claims, including claims for loss of earnings, must, be decided by the court as they can consider medical evidence and make legally binding findings. However, the Ombudsman will consider the general distress and inconvenience the situation may have caused the resident as well as the landlord’s response to any reported impact on his health.
19. The resident has also raised concerns of racial discrimination. It is outside the Ombudsman’s remit to establish whether the actions, or inaction, of the landlord’s staff amounted to discrimination or racism. Furthermore, allegations of discrimination are legal issues better suited to a court of law to decide. Nevertheless, the Ombudsman can assess whether the landlord’s overall communication with, and responses to, the resident were appropriate, fair, and reasonable.
20. The Ombudsman is unable to consider whether the subletting took place, as this is a matter better determined by the courts in its consideration of all the evidence. The Ombudsman can however consider the landlord’s handling of the matter and its response to the resident.

Handling of reports of subletting by the resident.

21. Following its receipt of information about subletting, the landlord appropriately attended the resident’s property to discuss the allegations against him. It did however incorrectly tell him that the notices gave him 28 days to end his tenancy. Upon the expiration of the notice to quit, the landlord would have been required to seek an order from the court, to end the resident’s tenancy. It would also have to issue possession proceedings, prior to the expiration of the notice of seeking possession and prove that it had valid grounds to evict the resident. In the Ombudsman’s opinion, the advice provided by the landlord was inappropriate. The landlord should have provided the resident with a better explanation, its actions amount to misinformation and caused the resident distress.
22. Following the reports of subletting, the landlord told the resident it had investigated the allegations. From the evidence provided, the landlord did not speak to the resident’s neighbours until 3 months after it had attended his property about the allegations. Although reasonable that the landlord would continue to conduct investigations during the notice period, the Ombudsman would have expected the landlord to explored speaking with witnesses at the earliest opportunity.
23. The resident identified he had evidence which supported his position that he lived in the property and offered to provide this to the landlord at numerous points. These were things such as google location histories, CCTV evidence, deliveries to the property, and gym memberships. The landlord has confirmed that it only considered his utility bills when it attended his property. It told him in its stage 2 response his evidence was not enough to refute the accusations against him, but failed to consider all the evidence the resident could provide. In the Ombudsman’s opinion, this was inappropriate. It should have looked to consider all evidence which was available to reach an informed decision on its approach in dealing with the claims made against the resident. Instead, it focused on the evidence it had received that supported its position. It failed to be objective in its investigation and treated the resident in a heavy-handed, unsympathetic, and inappropriate way and this led to frustration and distress for the resident. Its failure to objectively consider all the evidence also goes against the Ombudsman’s dispute resolution principle of fairness. This led to distress for the resident due to worries over his tenancy.
24. Despite the above, it is must however be acknowledged that even if the landlord had considered the evidence the resident proposed, there is nothing to say that it would have reached a different conclusion in its investigation. However, there was a clear failing in its decision making by not considering all of the evidence, and its decision as communicated to the resident was not well-reasoned as a result.
25. Further, although the landlord said it was informed the resident made frequent visits to the property, and would be captured on the footage, it should have considered the footage and formed its own opinion despite the reports. In the Ombudsman’s opinion, the landlord was dismissive and failed to give due regard to all the evidence. This was unreasonable and shows poor investigation into the resident’s complaint and a lack of customer focus. This would have caused the resident frustration.
26. The landlord recognised that there was a “service failure” in its failure to consider the CCTV evidence which was appropriate. It however failed to provide any remedy to the resident following this.
27. Within the stage 1 response the landlord explained the information from the resident’s neighbours was inconclusive, but still relied on one neighbour’s response which supported its position. The landlord has a right to choose which evidence it relied on however, It would have been reasonable for the landlord to  have explained to the resident why it chose to rely on the evidence which supported its position, rather than the one that did not.
28. The resident believed the reports which were made and the documents the landlord had which supported its position were fraudulent and this was disputed by the landlord. Although it cross referenced the signatures on the documents to its records and consulted with the police, given the concerns raised it would have been appropriate for the landlord to have considered and investigated these. The landlord could for example have provided the resident with an opportunity to prove that there were issues of fraud. Whilst the landlord will ultimately make a decision based on the evidence it gave the most weight to, it only considered the evidence which supported its position. This shows that it did not take a customer focused approached and caused the resident frustration.
29. When the resident asked to be provided with the relevant procedures the landlord followed or should have followed, it did not provide him with the information. This was especially important to the resident as it involved the risk of him losing his home. The landlord should have been able to provide the resident with information detailing the steps it needed to take or follow and at which point during its investigation. In the Ombudsman’s opinion this was unreasonable and shows a lack of transparency and understanding by the landlord.
30. In summary, the landlord misinformed the resident regarding the notices. It failed to provide him with an opportunity to provide evidence which supported his position, or an opportunity to respond to the allegations. It also failed to be transparent with him about the procedures it followed and was at times heavy handed in its approach. Based on this, the Ombudsman finds there was maladministration.

Response to reports of racial discrimination towards the resident.

31. When the resident raised issues of racial discrimination, the landlord appropriately spoke to the resident and then to the members of staff involved, to get their accounts of the situation and provided him with a response.
32. The landlord detailed in its stage 1 response that it conducted investigations into the resident’s claim of racial discrimination, aside from speaking to its members of staff. It is unclear if any other, investigations were completed. It should have provided more information about what it investigated, the evidence it relied on, and the processes followed in reaching its decision. The failure to do so led to a lack of reassurance for the resident in the landlord’s actions around the matter. It failed to show him that it had taken the matter sufficiently seriously.

Complaint handling

33. The Housing Ombudsman’s complaint handling code states that a complaint investigation shall be conducted in an impartial manner, seeking, sufficient reliable information from both parties so that fair and appropriate findings and recommendations can be made. It states, to ensure fairness, the landlord’s officers shall consider all information and evidence carefully. It further advises that the complaint handler must have no conflicts of interest. From the evidence, the landlord failed to abide by the code, due to its failure to properly gain and consider all the evidence, and in the Ombudsman’s opinion this was unsatisfactory.
34. This service contacted the landlord in October 2023 and raised questions around legal proceedings and the evidence considered by the landlord in its investigation. The landlord confirmed proceedings were never issued regarding the eviction of the resident. The complaint handling code defines legal proceedings as detail of the claim, such as the claim form and particulars of claim, having been filed at court.
35. The landlord refused to consider the resident’s complaint in December 2020 as it said it was subject to the legal process, however, it has confirmed that proceedings were never issued or served onto the resident. This goes against its complaint handling policy and the complaint handling code as in line with the codes definition, no legal proceedings were issued to the court. At the time of the resident’s complaint, it had only served a notice of seeking possession and notice to quit, as such the resident’s complaint was valid and within its remit to deal with. In the Ombudsman’s opinion, this was unreasonable, and caused the resident frustration, led to him taking the time to contact this service, and delayed the complaints handling process by 4 months. This was a missed opportunity to resolve the matter at an earlier stage.
36. Following the intervention of this service, the landlord agreed to provide a response to the resident’s complaint. When it became aware that its stage 1 response would be delayed, it was appropriate that it informed him of this.
37. The resident raised issues that the landlord assigned his complaint to the individuals that he had raised concerns about. The landlord mismanaged the resident’s complaint in December 2020, by refusing to accept it. The complaint handling code states that to ensure fairness, processes and procedures shall require the complaints officer to take measures to address any actual or perceived conflict of interest. As such the landlord should have considered whether it was appropriate for a member of staff who had investigated the alleged subletting to respond to the resident’s initial complaint of December 2020.
38. Following a 10-month delay, the landlord appropriately exercised its discretion by contacting the resident to identify the issues and choosing to deal with the resident’s complaint as an escalation to stage 2 in line with its policy. This was a positive approach as it meant that the resident received a resolution quicker.
39. The stage 2 response was however provided 7 working days outside both its policy and the Ombudsman’s code. There is no evidence that the delays were explained to the resident or that consent was sought to provide the response outside of the specified timeframes. There is no evidence provided which suggests that this led to significant detriment to the resident.
40. In its stage 1 response the landlord apologised and acknowledged there had been a “service failure” as some of its services had not been delivered in line with its expected standards. It however failed to explain what it had deemed to be a service failure. It also failed to identify any learning it had taken from the failing it recognised. Although an apology goes a long way in accepting responsibility for the failing, in the Ombudsman’s opinion, this was not enough. An order has been made below for the landlord to pay the resident £250 in compensation.
41. The Ombudsman has decided to issue a wider order under paragraph 54(f) of the Housing Ombudsman’s Scheme for the landlord to review its policy or practice in relation to the failings identified in this determination, which may give rise to further complaints about the matter. We have set out the scope of the review below.

Determination (decision)

42. In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was:
    1. Maladministration by the landlord in its handling of reports of the resident’s alleged subletting.
    2. Service failure in its response to reports of racial discrimination towards the resident.
    3. Maladministration with its complaints handling.

Reasons

43. The landlord took a heavy-handed approach in dealing with the resident. It failed to consider all material evidence, such as the resident’s further information and was not transparent in its decision making. It failed to consider all the evidence the resident stated proved his position. It provided the resident with inaccurate information around the notices and had no policy in place regarding the actions it would take around subletting to provide to the resident.
44. Although it spoke with the members of staff the resident identified, it failed to provide information about what other investigations it completed and the processes it followed to reach its decision.
45. It misapplied its policy when it refused to consider the residents complaint, and this led to delays in the complaint handling process. It also failed to consider whether there was a conflict of interest in allowing an officer who had investigated the matter which led to the complaint, to provide the resident with a refusal to investigate his complaint.

Orders and recommendations

46. Within 4 weeks of this report, the landlord must:
    1. Provide the resident with a letter of apology around its failings.
    2. Pay the resident £750 in compensation consisting of:
       1. £400 for its failings around its handling of the reports of subletting.
       2. £100 for its failing around its handling of reports of racial discrimination.
       3. £250 for its complaint handling failing.
    3. Provide proof of compliance with these orders.
47. In accordance with paragraph 54 (f) of the Housing Ombudsman’s scheme, within 12 weeks of this report, the landlord is ordered to consider the failings identified in this report and complete a review at senior management level of:
    1. Its practices around subletting and tenancy fraud, with a view to introducing a framework/policy, identifying:
       1. The steps and actions it will take in its investigation of such issues.
       2. The steps and actions it will take following its investigations to address such issues, with clear explanations about the meaning, and effect of any legal notices it might choose to issue.
    2. Provide a copy of the review to the Ombudsman with any proposals within 12 weeks of the date of this report.

3. Provide training to its staff on identifying the difference between issuing legal proceedings and notices, and when these will impact on complaint handling.
4. Provide further training to its staff on identifying where there is a conflict of interest which could impact on the complaint handling process, and how to remedy such issues.
5. Proof of compliance with orders 47 c and d should be provided to the Ombudsman detailing dates of training and the details of the content covered.