Birmingham City Council (202230143)
REPORT
COMPLAINT 202230143
Birmingham City Council
5 December 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 resident’s reports that the landlord’s actions resulted in a Data Protection Act (DPA) breach.
- The resident’s concerns about the landlord’s administration of their rental account.
Background
- The resident has occupied the property under a secured tenancy since 2016. The landlord is a local authority. The resident has informed the landlord they are a survivor of domestic abuse, the landlord holds no records of any other vulnerabilities for the resident.
- The property is a 2-bedroom maisonette. From 23 October 2020 the resident began receiving universal credit and was required to pay rent to the landlord. The resident opted to pay the landlord via a monthly standing order.
- The resident raised concerns about their rent payments after they received letters from the landlord which said they were in rent arrears. On 2 September 2022 the landlord said the resident called its rent office and discussed their rent payments. The resident disputes that this phone call occurred.
- On 16 December 2022 the resident told the landlord they believed the landlord was fraudulently making changes to their rental account. On 19 December 2022 the resident complained to the landlord. In this complaint the resident alleged the landlord had committed a DPA breach on 2 September 2022, and they also said they were receiving scam letters from the landlord.
- On 21 December 2022 the landlord responded to the resident’s complaint via a stage one complaint response. In its stage one response the landlord said:
- It had not made any changes to the resident’s rental account, or the level of rent they charged for the property. The landlord said it would not be possible for them to do this without the resident’s knowledge.
- The phone call on 2 September 2022 was recorded, and after listening to the call the landlord was satisfied it was the resident who had made the call. As such the landlord said they did not believe a DPA breach had occurred.
- The landlord agreed with the resident that they had not missed any rent payments. It said computer systems had identified the resident’s rental account as being in arrears, as the resident had not been using their assigned reference number when making rent payments via bank transfer. This had caused delays with the resident’s payments being assigned to their rental account, meaning the account to temporarily being marked as in arrears.
- The landlord advised the resident they could rectify this issue by using the correct reference on bank payments to the landlord.
- On 31 January 2023 the resident complained to this Service. In their complaint the resident said they wanted compensation as the landlord had claimed they had false rent arrears. The resident also alleged the landlord acted in a conspiracy with a neighbour to commit fraud. The resident was advised to complete the complaints process with their landlord before this Service could progress the complaint further.
- On 1 February 2023 the resident made another complaint, in this complaint the resident alleged the landlord was committing fraud relating to their rental account, as they did not owe any money to the landlord. The resident alleged the landlord was acting in co-ordination with an anti-social neighbour to commit fraud.
- On 2 February 2023 the landlord responded to the resident’s complaint via a stage one complaint response. In this response the landlord said:
- There had been delays in the resident’s rental payments being allocated to their rental account as the resident was not using the correct reference on their bank payments.
- The landlord again advised the resident they could rectify this issue by using the correct reference on bank payments to the landlord.
- On 14 June 2023 the resident requested their complaint be escalated to a stage two response. On this date the resident also made another complaint to the landlord about their rental account. The resident later withdrew the third complaint.
- On 26 June 2023 the landlord responded to the resident via a stage 2 response in relation to the complaint made on 2 February 2023. In this response the landlord said:
- The stage one response dated 2 February 2023 was accurate and reasonable.
- The advice previously given about the resident’s rent payment references was re-iterated again.
- The landlord said it was impossible for changes to be made to the resident’s rent or the money within their rental account without the resident being notified.
Assessment and findings
Jurisdiction
- What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
- Paragraph 42(j) of the Scheme notes as follows:
- The Ombudsman may not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.
- The resident raised concerns about a phone call the landlord said the resident had participated in. The resident does not believe they participated in this call, and as such they felt any information disclosed during the call would have been a data breach under the Data Protection Act 2018.
- After carefully considering all the evidence, in accordance with paragraph 42(j) of the Scheme, the resident’s concerns about a data breach falls within the jurisdiction of the Information Commissioner’s Office (ICO).
Scope of investigation
- The resident has alleged that the landlord has committed fraud in relation to the administration of their rental account. The Ombudsman does not have jurisdiction to investigate criminal matters, and as such this Service’s investigation will focus on whether the actions taken by the landlord during the complaints process were fair and reasonable.
Policies and procedures
- The landlord operates a 2 stage complaints policy. Under this policy the landlord will formally respond to complaints via a stage one response within 15 working days of the complaint. If the resident is dissatisfied with the stage one response the landlord will provide a stage 2 response within 20 working days of an escalation request.
- The landlord operates an escalation process for secured tenants who do not make their rent payments. The landlord uses automated IT software to review its tenant’s rental accounts at regular intervals. When the system identifies that a resident is in rental arrears, an automated letter is sent to the resident. If the arrears are under £50 then the letter will focus on the resident’s welfare and guidance about paying rent. If the arrears are between £50 to £200 then a pre-legal action letter is sent, this letter warns the resident of consequences of not paying rent. If the arrears are over £500 then a letter will be sent which notifies the resident the landlord will be seeking possession of the property.
Tenancy agreement
- The resident’s tenancy agreement outlines the landlord’s commitments, and its expectations around the resident’s rent payments. These include:
- The resident is to pay their rent in full and on time.
- The resident is permitted to pay their rent monthly via a standing order.
- The landlord will notify the resident of any changes to the resident’s rent payments 28 days prior to the change.
The resident’s concerns about the administration of their rental account
- According to the evidence supplied to this service the resident’s concerns about the administration of their rental account started in January 2021. However, there are no records to show the resident formally complained to the landlord at this time. Therefore, the Ombudsman’s investigation will focus on the circumstances around the resident’s complaints made between December 2022 and June 2023.
- When the resident made their complaint on 16 December 2022 their rent was £95.12 per week. The resident paid their rent via a monthly standing order made through their bank, instead of paying weekly.
- On 2 September 2022 the resident called the landlord’s rent office. Notes made during this call recorded that the resident said payments they had made were missing from their rental account. The landlord supplied the resident with a breakdown of their rent payments and the resident planned to compare this against their own bank statements and then contact the landlord.
- The next occasion where the resident contacted the landlord was on 16 December 2022. Notes made during this call said the resident told the landlord they felt it was committing fraud by tampering with their rental account.
- The resident made a complaint on 19 December 2022, in this complaint the resident said they had received scam letters from the landlord’s rent team. The resident also complained to the landlord on 1 February 2023, the content of this complaint was a repeat of the matters raised in the resident’s initial complaint.
- In both of the landlord’s stage one responses it explained to the resident that they had been paying the required rent. The landlord explained there had been delays with the payments being added to the resident’s rental account as the payment reference the resident had assigned to their standing order was incorrect. The landlord explained the references the resident had used meant the payments were not recognised by its IT systems, so the payments had to be manually reviewed and then assigned to the resident’s rental account. This explanation was reasonable, and directly addressed the resident’s concerns that fraud had been occurring.
- The landlord told this service it assigns resident’s a unique 11-digit reference number to use for standing order payments. Rental records show the resident used references which included their name and numbers which were different to their assigned 11-digit reference. As such the landlord’s explanation to the resident about why there had been issues with their rent payments was reasonable and appropriate in the circumstances.
- In the stage one response dated 21 December 2022 the landlord provided the resident with examples of how their payment reference had led to delays of over a month for their September and October 2022 rent payments to be assigned to the correct rental account. In both of its stage one responses and in its stage two response dated 26 June 2023 the landlord explained to the resident how they should set up their standing order payment reference to prevent the delays from happening in the future.
- The advice the landlord gave to the resident about their payment reference was appropriate and reasonable, as it outlined to the resident why the delays were occurring and provided them with advice about how they could prevent this issue happening again. Of note is that the landlord had previously notified the resident of this issue by letter on 14 May 2021. This suggests the landlord had the resident’s welfare in mind as it had taken steps to address this matter prior to the resident making a complaint.
- In its complaint responses the landlord could have given greater consideration about the resident’s possible vulnerabilities, and their ability to understand the advice given around the payment references. The resident had been informed about the issue with their payment reference on multiple occasions, but they did not make the advised changes, which might suggest they did not understand the advice. The landlord could have considered alternative methods of communicating its responses with the resident such as through an in-person meeting, via phone call or through an intermediary/advocate if the resident had one.
- In its stage one and two responses the landlord also assured the resident that no fraud had occurred, and the problems the resident had experienced stemmed from the standing order reference. The landlord added it was not possible for it to make changes to the money within the resident’s rental account without the resident being aware of the changes. It was reasonable and appropriate for the landlord to explain this to the resident as it showed the landlord attempted to reassure the concerns the resident had expressed around fraud.
- In their complaint dated 19 December 2022 the resident said scam letters were being sent to them from the landlord about their rent payments. The landlord’s escalation process for secured tenants notes the landlord operates an automated programme which sends out warning letters to residents whose rental accounts are in arrears. This service considers the letters sent to the resident about rental arrears to be appropriate in the circumstances, as sending letters to tenants in arrears was in-line with the landlord’s processes.
- The resident’s concerns about the letters were that they had been paying their rent, and the warnings about arrears were not correct. As previously discussed, the resident’s rental account was temporarily in arrears due to the delays with the resident’s payments being assigned to their account. It is understandable that the resident would have been confused by these letters. However, the landlord had already explained in 2021 to the resident there was issues with their standing order, and this had led to delays with the residents rent payments being assigned to their account. Considering the landlord had already attempted to warn the resident about the issues with the rent payments, and the sending of such letters was automated the landlord did not act unreasonably in this regard.
- The Ombudsman finds that there was no maladministration with the landlords handling of the resident’s concerns about the administration of their rent account. The landlord clearly explained to the resident why their pent payments were not going directly into their rental account, and it also provided the resident with advice around how to prevent this issue from occurring in the future.
Determination
- In accordance with paragraph 52 of the Scheme there was no maladministration in the landlord’s administration of the resident’s rental account.
- In accordance with paragraph 42(j) of the Scheme the resident’s concerns around a data breach is outside the jurisdiction of this service.