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Longhurst Group Limited (202308378)

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REPORT

COMPLAINT 202308378

Longhurst Group Limited

12 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. The complaint is about the landlord’s decision to extend the resident’s starter tenancy.
  2. The Ombudsman has also investigated the landlord’s complaint handling.

Background

  1. The resident was a periodic assured shorthold (starter tenancy) tenant of the landlord since July 2022 until the tenancy was terminated in May 2024. The property was a 2-bedroom ground floor flat. The resident’s partner was a joint tenant and resided at the property with him alongside 2 children. The landlord had recorded a vulnerability for the resident’s partner due to a mental health condition. The landlord is a housing association.
  2. On 9 November 2022, the landlord received an incident report from its contractor about the events of a visit made to the resident’s building to carry out repairs on another property. The contractor reported that the resident approached them about outstanding repairs to his property and used abusive language, shouted, and had ‘an aggressive manner’. The incident was witnessed by another contractor and filmed by the resident. Following the report, the landlord issued a ‘No Lone Working’ letter to the resident, which said that it would only carry out repair work related to health and safety issues, and routine repairs would not be conducted. It said it would review the situation periodically and if it felt the resident was no longer a risk, it would remove the alert and write to inform him.
  3. The landlord received a further incident report on 12 January 2023 from another contractor who visited the property for an emergency repair with a colleague. The contractor reported that the repair was raised as an emergency work order for a water leak from the above flat, but there was no evidence of the leak or repairs required. Instead they found condensation coming from the toilet cistern and this was communicated to the resident. The contractor reported that the resident then ‘became aggressive and very angry’, uttered expletives, and the door was slammed behind the contractors as they exited.
  4. The landlord has told this Service that it then received a call from the resident on 3 February 2023, when he was verbally abusive to a member of staff. It has not, however, provided a call recording (which it says was deleted after the 3-month retention period) or shared contact notes of the call.
  5. The landlord wrote to the resident on 2 March 2023 to advise that it had received allegations of abusive behaviour towards staff and contractors, and as the reported behaviour was a breach of the tenancy, it planned to visit the resident on 7 March 2023 to discuss this. On the same day it issued a separate letter with a stage 2 warning about the breach of tenancy, citing the incident of 12 January 2023 and the phone call of 3 February 2023. It said the resident had breached the tenancy agreement under the clause on nuisance and antisocial behaviour (ASB). Following receipt of the 2 letters, the resident contacted the landlord to communicate his disagreement with the warning and said it had to prove that the alleged behaviour had occurred.
  6. The landlord visited the resident on 7 March 2023 to discuss the stage 2 warning and to ask him to sign a voluntary Acceptable Behaviour Contract (ABC). It explained the tenancy conditions along with the need for its staff and contractors to feel safe in carrying out their duties. The landlord advised the resident during the visit that his starter tenancy would be extended by a period of 6 months. The resident declined to sign the ABC and requested proof of the incidents the landlord alleged. He said the landlord could not extend the tenancy without his permission, and that he had video evidence that showed he was not abusive. The landlord’s records note the meeting was terminated as things became heated, and as its staff members were leaving, the resident and his partner raised their voices and an expletive was directed at one of the staff.
  7. On the same day, following this visit, the stage 2 warning was reissued on 2 additional grounds; abusive behaviour towards staff during the home visit, and the resident’s refusal to sign the ABC. The letter advised the resident of the extension of the starter tenancy and asked him to resolve the breach of tenancy. It warned that if he continued to break the tenancy or failed to take steps to rectify matters, the landlord would issue a final warning.
  8. The resident contacted the landlord and said the ABC was voluntary and he had not been obliged to sign it. The landlord accepted this was correct and that it should not have included this in its warning, so it amended and reissued the stage 2 warning without the reference to the ABC.
  9. The resident then sent multiple emails and made telephone calls to the landlord advising that he disagreed with the starter tenancy extension, and that he had not consented to the extension. He said there was no proof of the allegations made and shared the recordings he had made with the landlord. The landlord reviewed the recordings and informed the resident that they did not cover the full length of the visits and did not show the periods where the alleged behaviour occurred. It said it did not require the resident’s consent to extend the starter tenancy. It explained that the extension was an alternative to legal action as it allowed extra time for the resident to demonstrate he could modify his behaviour. It said the actions it had taken in response to the breach of the tenancy were reasonable and proportionate.
  10. The resident logged an appeal to the extension on 8 March 2023 and, on 21 March 2023, made a complaint about the landlord’s decision to extend the starter tenancy.
  11. In the landlord’s stage 1 response of 31 March 2023 it said that its policy and procedures allowed it to extend the starter tenancy without the resident’s permission. It said it had reviewed the complaint at a senior level and was satisfied that the evidence provided was sufficient to support its decision to extend.
  12. The resident escalated the complaint to stage 2 on 31 March 2023, saying that he thought the evidence the landlord relied on was insufficient. In the landlord’s stage 2 response of 4 April 2023, it said again that it was satisfied the evidence it relied on was sufficient to extend the starter tenancy, and that it would not be investigating matters further.
  13. The resident remained dissatisfied with the landlord’s response and contacted the Ombudsman in May 2023, when he advised that he sought a reversal of the landlord’s decision to extend the starter tenancy.

Assessment and findings

The landlord’s decision to extend the starter tenancy

  1. It is important to note that it is not the role of the Ombudsman to establish the validity of the ASB reports made about the resident. Instead, it is for this Service to assess the landlord’s handling of the reports and determine whether it acted in accordance with relevant policies and procedures, and whether its actions were fair and reasonable in all the circumstances of the case. 
  2. Also, in line with this, the Service has not taken the call of 3 February 2023 under consideration when assessing the complaint. This is because it has not been provided with evidence that the call took place or details of what was said. While the Service does not doubt either party’s version of events, in the interest of fairness it must only rely on the evidence available to it.
  3. The resident’s tenancy agreement says that it was a periodic assured shorthold tenancy for 12 months which would automatically convert to an assured tenancy, unless before that date the landlord had notified the resident in writing that the tenancy probation period was to be extended. It does not stipulate that the resident must consent or give permission for the extension.
  4. The tenancy contract declaration, which was signed by the resident, sets out the landlord’s expectation from its tenants. One of these expectations is that the tenant will treat their neighbours, neighbours’ visitors, and the landlord’s staff and contractors respectfully at all times. It goes on to advise that if tenants fail to abide by the terms and conditions of their tenancy, the landlord will take action which could result in the tenant losing their home.
  5. The landlord’s nuisance and ASB policy sets out that tenants must not behave or act in a way that causes or is likely to cause nuisance or annoyance to anyone living, visiting, or working in the neighbourhood or in any of its offices.  It says that the landlord takes all reports of nuisance and ASB extremely seriously and that perpetrators of such behaviour risk losing their home should it seek to take possession proceedings as a result of ASB. It goes on to set out the procedure the landlord follows in handling reports such as reviewing the ‘No Lone Working’ register, making home visits, issuing warning letters, and providing advice on what is required from the resident.
  6. The reports the landlord received from its contractors met its definition of ASB under its policy and the tenancy agreement. It was legally obliged to take action to safeguard the people in its employment, and to ensure the resident was aware of his tenancy stipulations. It is this Service’s expectation and considered good practice that the landlord takes reasonable and proportionate steps to resolve the situation.
  7. These steps would be to issue warning letters, arrange home visits to discuss the behaviour and the support the landlord might provide, and to give the resident the chance to explain; and this is what the landlord did. ABCs are one such informal tool that allow landlords and residents the opportunity to set clear parameters for acceptable behaviour and potential consequences of breaches. As the resident noted, this is a voluntary arrangement, but, a reasonable step that this Service considers good practice for a landlord to propose in these circumstances.
  8. The tenancy agreement and the landlord’s starter tenancy policy (found on its website) allow it to extend the probation period while it takes steps to address unacceptable behaviour and tenancy breaches. This is because informal steps are a reasonable and proportionate alternative to taking legal action to terminate the tenancy, and the extension allows the landlord the necessary time it needs to get things back on track before it takes any formal action.
  9. This is also in the resident’s best interest, particularly where in this instance vulnerabilities and the presence of children had been advised. The steps and action the landlord took were in line with its policy and procedures. Therefore, the Ombudsman has found no maladministration in the landlord’s decision to extend the starter tenancy.

The landlord’s handling of the associated complaint

  1. The landlord’s complaint policy defines a complaint as ‘an expression of dissatisfaction, however made, about the standard of service, actions, or lack of action by the landlord, it’s colleagues or those acting on its behalf, affecting an individual customer or a group of customers’. It says a complaint can be made in a number of ways, including by phone.
  2. The policy sets out timeframes for responding to complaints; namely 10 working days at stage 1 and 20 working days at stage 2. It also states that complaints will be acknowledged at stage 1 within 2 working days of being made. It goes on to say that residents who are unhappy with the stage 1 response can request escalation to stage 2 within 1 month. It sets out that a resident can only use stage 2 if 1 of 3 criteria is evidenced; factual inaccuracy in the stage 1 response, the response does not address the complaint made, or there is evidence that the landlord’s complaints process was not followed.
  3. The resident made his complaint on 21 March 2023. This was acknowledged on 22 March 2023, and while the landlord had erroneously advised it would respond within 20 working days, its stage 1 response was issued on 31 March 2023. The resident escalated his complaint to stage 2 on 31 March 2023, and received the landlord’s stage 2 response on 4 April 2023. The responses were, therefore, issued within the specified timeframes.
  4. However, the landlord’s internal records and its stage 2 response show that it believed the resident could not have his complaint reviewed at stage 2 without providing reasons it considered ‘valid’. This reflects its policy that a complaint can only be escalated to stage 2 for 3 specified reasons. It further told the resident on 31 March 2023, when he asked for the complaint to be escalated, to email the reasons for the escalation.
  5. This is not in line with the Complaint Handling Code (the Code) that was in effect at the time. The Code said that ‘if all or part of the complaint is not resolved to the resident’s satisfaction at stage one it must be progressed to stage two of the landlord’s procedure.’ The resident clearly communicated that he was dissatisfied with the landlord’s stage 1 response, and that was enough for the stage 2 process to have then been engaged.
  6. This means that the resident’s disagreement with the stage 1 outcome was a valid reason on its own for escalation to stage 2. However, the landlord instead informed him that its stage 1 response was discussed with the director of housing who had agreed with it and because the landlord believed the complaint was fully answered at stage 1, it would not be completing a stage 2 review. This was not the correct position to take.
  7. Even where the landlord’s complaint outcome does not change from stage 1 to 2, it must still conduct a review in line with the Code, and the Code did not limit the escalation reasons to only 3, as the landlord had done in its complaints policy. Further, the request to escalate the complaint to stage 2 on the phone should have been sufficient. Clarification could have been sought during that call by the landlord about the resident’s unhappiness with the stage 1 response without the need for him to email. The landlord did, however, refer the resident to this Service in its stage 2 response, so there was not a delay or barrier to him being able to access the Ombudsman. Therefore, the landlord’s poor handling of the complaint at stage 2 amounts to service failure.
  8. The landlord is therefore ordered to write to the resident with an apology (with reference to the Ombudsman’s remedies guidance to ensure the apology is sincere and appropriate) for its failure to fully review the complaint at stage 2. It is further ordered to review its complaint handling policy literature and update it to ensure it is in line with the Code and that its staff are trained to apply it correctly.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was:
    1. No maladministration in the landlord’s decision to extend the resident’s starter tenancy.
    2. Service failure by the landlord in respect of its handling of the associated complaint.

Orders

  1. Within 4 weeks of this report, the landlord is ordered to write to the resident with an apology (with reference to the Ombudsman’s remedies guidance to ensure the apology is sincere and appropriate) for its poor complaint handling. It should provide this Service with evidence of having done this.
  2. Within 10 weeks of this report, in accordance with paragraph 54 of the Scheme, the landlord is ordered to review its complaints policy literature and update it to ensure it is in line with the new Code. It should ensure its staff are trained to apply the amended policy correctly to prevent similar failings in future complaint handling. It should provide this Service with evidence of having done this.