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Lewisham Council (202303326)

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REPORT

COMPLAINT 202303326

Lewisham Council

24 June 2024


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. This complaint is about how the landlord handled the resident’s reports of discrepancies between the advertised rent and the rent stated in the tenancy agreement.

Background

  1. The resident is a secure tenant of the landlord. The property is a one-bed first floor flat in a sheltered accommodation scheme.
  2. The resident made a complaint on or around 7 November 2022. She said the rental amount on the tenancy agreement differed from that in the advert, and she wanted a refund of an overpayment of rent. She said she had sent multiple emails about this to the landlord, but not received a response.
  3. The landlord issued a stage 1 response on 21 November 2022. It said it had reviewed the advert, and that the advert stated there would be additional weekly charges. It said the tenancy agreement was a legally binding document, and that it expected the resident to pay the rent she had agreed to when signing the tenancy. It did not uphold the complaint.
  4. The resident asked to escalate her complaint on 1 December 2022. She disputed the landlord’s summary of the advert, and sent the landlord a copy of the advert she said she had seen when bidding on the property.
  5. The landlord sent a stage 2 response to the resident on 16 January 2023. It said it could not locate the advert the resident had provided a screenshot of. It said that advert was incorrect, and had it relied on that advert at the point of letting it would have withdrawn it, meaning the resident would have had to bid again. It said this meant the higher rent would have been charged in any event. It added that the offer letter and tenancy agreement both stated the correct rent, and that the resident had signed the agreement. It noted it had been open to the resident to not sign the agreement if she disagreed with the rent stated, so it did not uphold the complaint.
  6. The resident asked to escalate her complaint to stage 3 on 20 March 2023. She said the property had been advertised at a £91.25 weekly rent, including the various fees, and she noticed when given the tenancy agreement at her sign up appointment that the rent was higher than the advertised rate. She said she raised this with the staff member arranging her sign up, and noted when she signed the tenancy that she would dispute this in the new year, as most of the landlord’s lettings staff were on holiday at the time. She provided her evidence that the property was advertised at a rent of £91.25 per week, and asked for rent to be reimbursed.
  7. The landlord issued its stage 3 response on or around 6 April 2023. It said the advert the resident provided was incorrect, and that had it realised an advert was incorrect it would have withdrawn the advert and corrected it. It said the resident identified at the viewing that the property differed from the advert, so should have checked the remaining details, including the rent, at the time. It accepted that the resident disputing certain details from the advert should have prompted it to check the details again before drafting the tenancy agreement, as this would have given the resident the option of reconsidering the tenancy. However, it noted that the resident had entered into a legally binding contract, and it concluded that she would still have signed the agreement for the higher rate had it been correctly advertised. It decided that while it found some fault, it did not uphold the complaint overall.
  8. The resident remained dissatisfied with the landlord’s response, so referred her complaint to the Ombudsman. She said the landlord had accepted it made a mistake, but it maintained she should bear the cost of that. She said she was unhappy with the service provided by the landlord, that she did not know why the landlord would not reimburse rent when it had been paid a second time via housing benefit, and that the level access shower the landlord had installed was not suitable for her needs.

Assessment and findings

Scope of the investigation

  1. Paragraph 42(a) of the Housing Ombudsman Scheme says the Ombudsman will not investigate complaints which have not yet completed the landlord’s internal complaints process. The resident told the Ombudsman that the bathroom the landlord installed in December 2021 was not suitable for her needs, and that this was not rectified until summer 2023. This was not part of the resident’s original complaint to the landlord, so has not completed the landlord’s internal complaints process. As such, this complaint cannot be considered as part of this investigation.
  2. Paragraph 42(d) of the Housing Ombudsman Scheme says the Ombudsman cannot consider complaints which relate to the level of rent, and paragraph 42(f) of the Scheme says the Ombudsman cannot consider complaints where it considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts. The resident’s complaint relates to the amount of rent charged, and she disputes whether, as a matter of contract law, the landlord is entitled to charge the rent stated in the tenancy agreement when she believes it is different to the advertised rent. It is not within the Ombudsman’s remit to determine matters of contract law in the way a court would, so we cannot determine this part of the resident’s complaint. The Ombudsman can only consider how the landlord communicated when the resident raised her concerns. Should the resident wish to dispute the rent due, she may wish to take independent legal advice.

The resident’s concerns regarding the accuracy of the advert

  1. The resident said she bid on the property on 26 August 2021, and her bid was accepted on 30 August 2021. It is common ground that the property was advertised as a first floor flat with a level access bathroom, and that the advert was incorrect in that regard. There is a dispute as to whether the advertised rent was £91.25 per week inclusive of charges, or £91.25 plus charges.
  2. The landlord sent the resident an email on 2 December 2021 to arrange a viewing of the property the following day. Attached to the email was an offer letter for the property, which stated that the rent was £127.34 per week. The resident viewed the property the following day. At the viewing, it became apparent that the property was not on the ground floor, and that there was no level access bathroom. She raised concerns with the landlord, and it responded by renovating the bathroom. On 23 December 2021, the resident attended an appointment with the landlord to sign the tenancy agreement.
  3. The tenancy agreement is a contract between the resident and the landlord. It affords certain rights to both the resident and the landlord and means the resident can live in the property as long as they pay rent and follow the rules in the agreement. The key terms of the tenancy should be detailed within the agreement, including the rent amount. A tenancy agreement is legally binding on both parties and can normally only be changed if both the resident and the landlord agree.
  4. The tenancy agreement stated that the rent was £127.34 per week. The resident signed the tenancy agreement, but wrote on the agreement that she would dispute the amount in the new year as she considered the rent stated to be illegal. As noted above, it is outside of the Ombudsman’s remit to make a ruling on what the rent level should be, as that would be a legal matter. However, the Ombudsman can consider the landlord’s communication in this regard.
  5. The Ombudsman has not seen any evidence that the resident disputed the rent amount when she received the offer letter on 2 December 2021. However, when the landlord received the resident’s signed tenancy agreement, it was clear from her written comment on the agreement that she wished to dispute the rental amount. The Ombudsman would have expected the landlord to respond to the resident’s comments to clarify its position when it received the agreement. It did not do so until 3 March 2022, after the resident had sent multiple emails disputing the rent due and raising concerns about discrepancies between the advert and the tenancy agreement. It has provided no explanation for its delay in responding, and in the absence of an explanation the Ombudsman can only conclude that the delay was avoidable and unreasonable.
  6. When it responded to the resident, it said that both the offer letter and tenancy stated the correct rent amount. As set out above, both the offer letter and the tenancy agreement stated that the rent would be £127.34 per week. The resident responded on 10 March 2022, and noted various discrepancies in the advert. She said she had raised issues with the price prior to signing, and had written on the contract that she disputed the rent. She then sent chaser emails on 17 and 29 May 2022, as she had received no further response from the landlord. The landlord has provided no evidence of acknowledging or responding to the resident’s emails, which was unreasonable.
  7. There were just over 2 months of delays in responding to the resident’s initial reports of discrepancies between the advertised rent and the rent under the tenancy, followed by an 8 month delay in responding to the resident’s further emails regarding the advert. Those delays meant the resident had to chase a response on multiple occasions.
  8. However, while its responses were unreasonably delayed, the landlord has consistently maintained its position that the rent due was as stated in the offer letter and tenancy agreement. As such, there is no evidence that the overall outcome would be different had the landlord responded sooner, and any detriment caused by its delayed responses would therefore be limited to distress and inconvenience in having to chase a response from the landlord. While the Ombudsman notes that the resident has requested a reimbursement of rent, that request would also form part of the legal dispute as to the amount of rent due, which is not within the Ombudsman’s remit.
  9. Having considered all the circumstances of the case, the Ombudsman considers that the landlord should pay the resident £150 compensation for the distress and inconvenience caused by the delays in its communication, and the need for the resident to chase a response. This is in line with the Ombudsman’s published remedies guidance for failings which have adversely affected a resident, but which have not significantly affected the overall outcome.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been maladministration with regard to the landlord’s handling of the resident’s reports of discrepancies between the advertised rent and the rent stated in the tenancy agreement.

Orders

  1. Within 4 weeks of the date of this report, the landlord is ordered to:
    1. Issue a written apology to the resident for the failings identified in this report.
    2. Pay the resident £150 compensation for the distress and inconvenience caused by the failings identified in this report.
  2. The landlord must write to the Ombudsman to provide evidence of compliance with the above orders within 4 weeks of the date of this report.