Karbon Homes Limited (202313549)
REPORT
COMPLAINT 202313549
Karbon Homes Limited inc Byker Community Trust
24 February 2025
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:
- Decision to take legal proceedings to gain possession of the resident’s home.
- Handling of concerns raised about staff conduct.
- The Ombudsman has also assessed the landlord’s complaint handling.
Background
- The resident is an assured tenant and he lives in a 3 bedroom house with his adult children. The landlord is a housing association which owns and manages the resident’s home. The landlord has no vulnerabilities recorded for the resident on its housing systems but he has mental health conditions that it has recorded on other systems.
- In August 2021, the landlord became aware that the resident had been convicted of a criminal offence committed in June 2020. After the resident received a prison sentence in May 2022, the landlord served a notice to seek possession of his home. It filed a possession claim in court on 24 June 2022.
- On 5 August 2022, the resident’s representative complained that the landlord’s legal action was disproportionate and unfair, including because it had not taken his mental health conditions into account. She also complained about the conduct of a staff member during a telephone call. The representative complained again on 5 April 2023.
- The landlord gave its stage 1 complaint response on 26 May 2023 which said:
- It was sorry it had not replied to the representative’s email of 5 August 2022. It should have investigated the complaint at the time and offered £100 compensation for not doing so.
- It could not deal with the complaint about its decision to take legal action as such matters were excluded from its complaints policy. The resident should seek legal advice if he wanted to challenge the decision.
- While it held information about the resident’s mental health conditions in connection with his employment, it could not use it when dealing with his tenancy.
- It had spoken to the officer the representative had complained about. Their account of the telephone call was different. It felt the representative’s recollection was likely to be inaccurate.
- The representative asked for the complaint to be escalated on 1 June 2023. She said the landlord had not taken her concerns seriously and had not investigated them properly.
- The landlord gave its stage 2 complaint response on 6 July 2023 which said:
- It could not investigate the representative’s allegation that an officer had not been truthful during legal proceedings because matters relating to legal action were excluded from its complaint policy.
- It could understand why the representative felt its comments about the telephone call were unfair. It should not have made “assumptions”.
- It did not have any evidence of the call apart from the differing accounts. The officer had been properly supervised and it had followed its policy and procedure.
- It should have dealt with the representative’s complaint in August 2022. It was unlikely the outcome would have been different if it had and it had apologised for not doing so.
- It offered compensation of £300 for its failure to respond to the email of 5 August 2022 and the assumptions made in its stage 1 response. It also refunded the representative’s post and printing costs.
- The resident’s representative asked the Ombudsman to investigate. She remained dissatisfied with the landlord’s decision to take legal action and its handling of the concerns about staff conduct. She wanted the landlord to be accountable for its staff’s conduct and pay compensation for the distress and inconvenience caused to the resident.
Assessment and findings
Jurisdiction
- The Ombudsman is not free to investigate every complaint referred to us. What we can and cannot consider is called our jurisdiction and is set out in the Scheme.
- Paragraph 41.c. of the Scheme says that the Ombudsman cannot consider matters that were the subject of court proceedings where judgement on the merits was given.
- In this case, the landlord started court proceedings to gain possession of the resident’s home in June 2022. The court made a suspended possession order for the property on 4 January 2023. This meets the conditions of paragraph 41.c. of the Scheme because the court gave a judgement on the merits of the possession case.
- The resident was represented by a solicitor during the court proceedings and had the opportunity to challenge the landlord’s possession claim. This could have included challenging whether the landlord’s claim was lawful and proportionate, and the lack of consideration of his mental health conditions.
- We acknowledge that the legal costs involved and the state of his mental health at the time caused the resident to decide not to challenge the possession claim. He told us that he felt that agreeing to a suspended possession order was a better option for him. It meant he could remain in his home and avoid further legal costs.
- However, we have no discretion under the Scheme to investigate this part of the resident’s complaint. As such, his complaint about the landlord’s decision to take legal proceedings to gain possession of his home is outside of the Ombudsman’s jurisdiction.
Concerns about staff conduct
- The landlord’s Antisocial Behaviour (ASB) policy and procedure says its staff will keep a record of all conversations with complainants, alleged perpetrators and witnesses during ASB cases.
- The landlord gave us its records of the ASB case relating to the action taken to seek possession of the resident’s home. The records show details of its staff’s decisions and actions in managing the case, and correspondence they sent and received.
- The records show that the resident’s representative spoke with the landlord’s solicitor after receiving the landlord’s notice to seek possession on 23 May 2022. In an email sent the same day, the solicitor gave the landlord’s staff details of their discussion with the representative.
- Later entries in the records show the representative asked to speak with the landlord’s staff. A call was arranged to take place on 7 June 2022.
- The landlord’s records contain no further reference to the arranged call. There is nothing to suggest it did not happen but neither is there any record of the discussion that took place. Given the landlord does not record all calls, the lack of any record of the discussion is a significant omission and is an example of inadequate record keeping by the landlord’s staff. Failing to make a record of the conversation was also contrary to the landlord’s ASB policy.
- The resident’s representative emailed the landlord on 5 August 2022. She said that, during a phone call, an officer had shouted at her, made derogatory comments about the resident and said they would make sure his home was taken away. The representative alleged that the staff member was pursuing a “personal vendetta” against the resident who had previously worked for the landlord.
- These were serious allegations and we would have expected the landlord to have investigated them. There is no evidence that it did so at the time. Nor is there any evidence that the landlord replied to the representative’s email or even acknowledged it. The landlord’s lack of action was inappropriate under the circumstances.
- The landlord did not investigate the representative’s concerns until after she complained again on 5 April 2023. Then, its investigation appears to have been limited to comparing the accounts given by the representative and the officer concerned. By this time, almost 10 months had passed since the telephone call took place in June 2022.
- There is no evidence that the landlord considered the representative’s email of 5 August 2022 during its investigation. This was a failing as, in the absence of a call recording or note of the call made by the landlord’s staff, it was the only account of the discussion that had been made around the time the call took place.
- Even with the representative’s email, it would have been reasonable for the landlord to have decided that it did not have sufficient evidence to reach a conclusion about what had happened during the call. It would have been reasonable for it to have apologised and considered how it could gain assurance that all its staff’s calls met its service standards in future. It should also have identified its staff’s failure to follow its ASB policy in not making a record of the discussion at the time.
- The landlord’s approach in deciding it had to consider which of the accounts given in April 2023 was “more likely” was unreasonable. Its explanation that it had decided its officer’s account was more likely because they were “experienced” and “knew the importance of customer service” was not evidence based and, as such, was unfair.
- Its statements that the representative’s recollection was likely to be “inaccurate” because she had been “shocked” and “unhappy” added to the injustice of the landlord’s approach. Its approach and comments were inappropriate in the circumstances.
- The lack of evidence means the Ombudsman cannot reach a conclusion about what happened during the call. It is not necessary for us to do so because our role is to assess whether the landlord’s handling of the concerns was fair and reasonable under the circumstances.
- The landlord acknowledged some failings in its stage 2 complaint response of 6 July 2023 and offered £300 compensation. However, it did not recognise the significance of its staff’s failure to keep a record of the telephone call as its ASB policy requires. Nor did it recognise the significance of its failure to respond to the concerns raised in August 2022.
- As such, the Ombudsman cannot conclude that the landlord’s process gave reasonable redress to the resident.
- There was maladministration in the landlord’s handling of concerns raised about staff conduct. This is because the landlord failed to keep adequate records in line with its policy, failed to investigate when it received the concerns, and later gave a response that was unfair and inappropriate.
- The resident has explained the distress and upset caused by the landlord’s failure to respond to the concerns raised in August 2022. He said he was worried that he and his children would lose their home and this added to his mental health conditions. He explained he felt the landlord’s later response was biassed and unfair and this caused him further distress.
- We have ordered the landlord to apologise and pay compensation of £500. This amount is in line with the Ombudsman’s policy and guidance on remedies and appropriately recognises the distress and inconvenience caused. The landlord may deduct the £300 it offered during its complaint process if it can evidence it has already paid it.
- We have also ordered the landlord to conduct a case review to identify the causes of the failures we have identified in this investigation. This will enable the landlord to learn from the case and avoid similar failings in future.
Complaint handling
- Under the Ombudsman’s Complaint Handling Code (the Code), landlords must:
- Acknowledge a complaint within 5 working days.
- Give a stage 1 response within 10 working days of the acknowledgement.
- Give a stage 2 response within 20 working days of acknowledging the escalation request.
- The representative’s email of 5 August 2022 was a clear expression of dissatisfaction about the landlord’s handling of the legal action and staff conduct. It met the definition of a complaint given in the Code and the landlord’s complaint policy.
- As such, the landlord should have logged a complaint and it is not clear from the evidence seen why it did not. The landlord’s failure to log and respond to the complaint was contrary to the requirements of the Code and its own policy. Its failure prevented the resident’s access to its complaints process and from being able to bring the complaint to the Ombudsman.
- The landlord also failed to recognise the representative’s second complaint of 5 April 2023 initially. The landlord had passed the email on to a manager to respond to. This was a failing as the landlord should have logged it as a complaint and given an acknowledgement within 5 working days.
- It is also concerning that the manager it was passed on to was one who had been named in the complaint. While the manager recognised that the email should be considered as a complaint, they did not consider the potential conflict of interest in being named in it.
- The manager emailed the representative on 18 April 2023 saying they would investigate the complaint. This was inappropriate and contrary to the Code at the time which said that complaints must be assigned to an officer without any conflicts of interest. It should not have taken a further email from the representative on 21 April 2023, pointing out the conflicts of interest, for the landlord to reassign the complaint.
- The landlord’s mishandling of the complaint up to this point meant it did not formally acknowledge the complaint until 28 April 2023. This was 16 working days after the complaint was made. As such, the landlord did not meet the 5 working day timescale required by the Code.
- The delays meant that the landlord’s stage 1 response of 26 May 2023 was given 34 working days after the representative had complained. We acknowledge that the landlord had extended its response timescale on 15 May 2023 but, by that time, its response was already late. The landlord did not meet the 10 working day timescale for a stage 1 response required by the Code and its complaints policy.
- The evidence suggests that the landlord may have met with the representative on 15 May 2023 to discuss the complaint. There is no record of the discussion that took place and this is a further example of inadequate record keeping by the landlord.
- The landlord’s stage 1 response was inadequate and suggests its investigation was also inadequate. For example, the response said the landlord should have replied to the representative’s email of 5 August 2022. However, it did not explain why it had failed to do so or why it had not investigated the complaint at the time. This suggests the landlord had not investigated why the failure had occurred.
- Part of the complaint was that the landlord had assured the representative that the resident’s tenancy was not at risk on 4 May 2022 but had served a notice to seek possession 2 weeks later. In its stage 1 response, the landlord referred to this as being about its decision to take legal action. It said it could not investigate this as its complaint policy excluded complaints about decisions to take legal action.
- The Code at the time said that landlord’s must accept complaints unless there was a valid reason not to do so. The Code gave examples of exclusions that we would consider to be fair and reasonable including where legal proceedings had started.
- The landlord’s policy at the time said that, in addition to matters relating to legal proceedings, it would not consider complaints about decisions to take legal action through its complaints process. This may have been a fair and reasonable exclusion in circumstances where the landlord had already explained its reasons for taking action.
- In this case, the landlord had been considering taking legal action from August 2021. There is no evidence it had told the resident or his representative that it was considering legal action before its solicitor served the notice to seek possession on 18 May 2022. Under the circumstances, it would have been reasonable for the landlord to have explained in its complaint response why it had said the tenancy was not at risk and then served a notice 2 weeks later.
- We note that the landlord has changed its complaints policy since the events in this case. Complaints about decisions to take legal proceedings are no longer specifically excluded from its complaints process. As such, we have made no orders relating to the landlord’s complaints policy in this case.
- Another part of the complaint was that the landlord had not referred the resident’s mental health conditions in its possession claim. The landlord could have decided that this too was excluded by its complaints policy as it related to the legal proceedings. It was reasonable that the landlord chose to give an explanation.
- However, its explanation focussed on the data protection rules that meant the landlord could not use information it held in relation to the resident’s employment for a different purpose. This suggests that the landlord did not consider that its staff could have asked the resident, or his representative, at any point if he had vulnerabilities it should take into account in managing his tenancy.
- The resident’s representative disclosed the resident’s mental health conditions during the complaints process. The landlord should have recorded his vulnerabilities on its housing systems. However, it told us in its evidence submission that it had no vulnerabilities recorded. As such, this is a further example of inadequate record keeping by the landlord.
- The landlord gave its stage 2 response on 6 July 2023 which was 25 working days after the representative asked for the complaint to be escalated. There was a short delay due to it identifying a senior manager with no potential conflicts of interest. This was reasonable under the circumstances and there is no evidence that the resident or his representative were disadvantaged.
- The evidence shows that the landlord’s investigation at stage 2 included interviewing all the officers involved in the ASB case. It also suggests the landlord may have spoken with the representative as there were notes which appeared to be preparation for a discussion with her, and the stage 2 response referred to a call being made. However, there is no record of what was discussed and this is another example of inadequate record keeping by the landlord.
- The landlord’s stage 2 response said it could not investigate the allegation that a staff member had been untruthful in the legal proceedings. This was in line with its complaints policy as the matter related to the court proceedings which were excluded for investigation through its complaint process. It was reasonable that the landlord advised the representative to seek legal advice if she wanted to challenge the outcome of the proceedings.
- However, the landlord could have investigated the handling of the ASB case outside of its complaints process. Given the serious nature of the allegations it had received, it would have been reasonable for the landlord to have satisfied itself that its staff had followed its ASB policy and procedure and that there had been an appropriate level of management oversight of the case.
- We have recommended the landlord considers reviewing its handling of the ASB case if it has not already done so. This will enable the landlord to learn from the case and satisfy itself that it has sufficient oversight and assurance arrangements in place.
- There was maladministration in the landlord’s handling of the resident’s complaints. This is because the landlord failed to recognise the complaints when they were made, and did not meet the requirements of the Code when investigating and responding to the second complaint at stage 1.
- The landlord’s mishandling of the complaints caused distress and inconvenience to the resident. He explained that he felt anxious and depressed because he felt the landlord was not being open and transparent.
- We have ordered the landlord to apologise and pay compensation of £300. This amount is in line with the Ombudsman’s policy and guidance on remedies and appropriately recognises the distress and inconvenience caused.
Determination
- In accordance with paragraph 41.c. of the Scheme, the resident’s complaint about the landlord’s decision to take legal proceedings to gain possession of his home is outside the Ombudsman’s jurisdiction.
- In accordance with paragraph 52. of the Scheme there was maladministration in the landlord’s handling of:
- Concerns raised about staff conduct.
- The resident’s complaints.
Orders and recommendations
Orders
- Within 4 weeks of the date of this report, the landlord must provide evidence that it has complied with the following orders:
- Write to the resident to apologise. The apology must acknowledge the failings we have identified and the impact they had on the resident. The landlord must send us a copy of its apology.
- Pay the resident total compensation of £800. The compensation must be paid directly to the resident and not offset against any arrears. It is comprised of:
- £500 for the distress and inconvenience caused by its handling of the concerns raised about staff conduct. The landlord may deduct the £300 it offered in its stage 2 complaint response if it can evidence it has already paid it.
- £300 for the distress and inconvenience caused by its handling of the resident’s complaints.
- Within 8 weeks of the date of this report, the landlord must have carried out a review of this case. The review must be led by a senior manager who has not had prior involvement and must include:
- Investigating the cause of its failure to act after receiving the representative’s email of 5 August 2022 and considering how it can avoid this in future.
- Investigating the cause of its failure to recognise the complaints when they were received and considering how it can avoid this in future.
- Considering how it can make sure that its staff keep adequate records, in accordance with its policies, when dealing with ASB cases and complaints.
- Within 10 weeks of the date of this report, the landlord must provide us with its findings from the case review and its plan for implementing improvements it needs to make.
Recommendations
- The Ombudsman recommends that the case review ordered in paragraph 62. should include considering:
- Whether its communication with the resident and his representative, and its decision to take legal action were in line with its ASB policy.
- Whether there was appropriate management supervision of the ASB case.
- How it could have identified, and taken account of, the resident’s vulnerabilities during the ASB case.