Mid Devon District Council (202215292)

REPORT

COMPLAINT 202215292

Mid Devon District Council

29 February 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:
1. the landlord’s decision to issue the resident with a Notice to Quit.
2. the landlord’s handling of the resident’s personal data.
The Ombudsman has also considered the landlord’s complaint handling.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by 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.
After careful consideration, the following aspects of the resident’s complaint are outside of the Ombudsman’s jurisdiction:
1. The landlord’s handling of the resident’s personal data.

Paragraph 42(j) of the Scheme states that the Ombudsman will not review complaints which concern matters that fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.
The resident complained that she believes there had been a data breach as she alleged that the landlord shared her personal data with her ex-partner.
Complaints about data protection are considered by the Information Commissioners Office (ICO), the independent regulator for data protection and information rights law. Therefore, the Ombudsman will not consider the complaint about the reported data breach, as this falls within the remit of the ICO.

Background and summary of events

Background

The resident is a secure tenant of the local authority landlord. Her tenancy started in 2017. The property is a 3 bed house. The resident resides with her son. She states that her son has special educational needs. She has also informed the landlord that she has ADHD and a mental health condition.
Section 79(1) of the Housing Act 1985 provides that a secure tenancy only remains as such for so long as the landlord and tenancy conditions are met.
Section 81 of the Act states that “the tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home;”
The resident’s tenancy agreement states that:
1. The resident must use and occupy the property as her only or principal home. If the landlord has reason to believe that the resident is not living in the property, they will take action to obtain possession.
2. The resident must not sublet part of the property without the landlord’s written consent.
3. The resident must not sublet or part with possession of the whole of the property.
4. Under the Prevention of Social Housing Fraud Act 2013, a resident will commit an offence if they sublet the whole or part of the property, such as the property is no longer their only or principal home, and they know that this is contrary to the express or implied terms of the tenancy.
5. The resident must not (either solely or jointly) own or rent any other residential property which it would be reasonable for them to live in as their main property. The resident must inform the landlord if they own a residential property or have another residential lease or Tenancy or inherit a property.
The landlord has provided this Service with a supplementary document to the tenancy agreement which states (in addition to the points above) that:
1. Secure tenants have the right to take in lodgers without the landlord’s consent but must not allow their property to become overcrowded. If they receive any help with housing costs or council tax, they are responsible for updating the relevant organisation.
2. Secure tenants are responsible for the behaviour of any sub-tenants and/or lodgers, this includes making sure they comply with the terms and conditions of the tenancy agreement.
3. If the resident leaves their property for more than 28 days, they must beforehand:
  1. inform the landlord in writing of the dates they will be away and their contact details or those of someone else in the locality who can deal with any emergency on the resident’s behalf; and
  2. ensure the property will be looked after and kept secure while the resident is away. If they do not inform the landlord when they are away, the landlord may treat them as having parted with possession of the property and take action to repossess the property.
The landlord operates a 2 stage complaints policy. Stage 1 complaints will be acknowledged within 3 working days and responded to within 10 working days. Stage 2 complaints will be responded to within 10 working days. If a longer investigation is required, the resident will be informed that a further period is required to investigate and resolve their complaint, up to a maximum of 12 weeks.
The landlord’s compensation policy states that discretionary compensation may be awarded where there has been a service failure and where a resident has been caused distress, upset or inconvenience because of its action or inaction. Impact redress levels range between no impact (£0) to high impact (£250).

Summary of events

When the tenancy started, the resident occupied the property with her husband and two sons. The resident’s relationship with her husband ended in 2018, after which he left the home and moved out of the area. Her older son is an adult and no longer lives with the resident. Her younger son was aged 12 at the time of the complaint.
In 2019, the resident started a 4 year course of education at university. The university was a considerable distance from her home, and she enquired with the landlord if she could be away from the property for 3 days per week, as she wished to stay in accommodation close to the university. In a letter dated 12 November 2019 the landlord agreed to this.
In or around September 2019, the resident arranged for a lodger to move into the property with her. She notified her landlord of this on 19 September 2019.
On 12 February 2020 the resident asked the landlord if it would consent to her being away from the property for 4 nights a week.
Around the start of 2020, there were family court proceedings regarding residence arrangements in relation to the resident’s youngest son.
In or around the summer of 2020, the resident began staying with a new partner close to the university. They moved into a property together in the area.
The landlord wrote to the resident on 27 July 2020 to inform her that it had received information that she was subletting her property and that she was no longer living there. It asked that she make contact to discuss the matter further. It also said that it was unable to offer advice about this but signposted her to local advice services.
In June 2021, as part of a court order it was agreed that, from September 2021, the resident’s son was to attend school in the resident’s university city. The resident’s son was to live with her from Sunday night to Friday each week. On the other days he would stay with his father. The court order recorded that the resident’s son was attending school in the resident’s university city and that it had been agreed that the resident would permanently relocate there.
In May 2022, the landlord received information that the resident was no longer living at the property, having sublet the whole of the property. The landlord made further enquiries and received information that appeared to confirm this.
The landlord contacted the resident by letter on 6 May 2022 to inform her of its concerns that the whole of the property was being sublet. It said that it would be passing the matter to its legal team to consider. It would not be able to advise her further in relation to this, but it signposted her to obtain legal advice. There followed an exchange of correspondence between the resident and landlord where the resident said that:
1. She was studying at university in a different city. She was staying in her university city and her son was attending school there.
2. At different times she had a lodger living at the property. Sometimes her friends would stay there too when they had nowhere else to go.
3. she returned to the property periodically, and outside of term time. Her furniture remained in the property, she used the property’s address for all post including bank statements and was on the electoral register there.
4. She was registered with a doctor in her university city, as was her son.
5. The landlord had previously given its consent for her to have a lodger and for her to stay in her university city for 3 days a week.
6. she returned home to the property at weekends, apart from when she was away sailing.
The landlord undertook further enquiries around this time and obtained information that suggested that the resident had another tenancy in her university city.
On 20 July 2022, the landlord asked the resident to provide details of all lodgers who had lived in the property, their date of birth and last known address.
On 15 August 2022, the resident provided the landlord with a letter from her university confirming that she was attending a full time course of education and that attendance in person was required.
On 20 September 2022, the landlord served the resident with both a notice to quit and notice seeking possession. It later informed the resident that she was no longer entitled to apply for a mutual exchange or to buy the property as the tenancy had ceased to be secure.
On 13 October 2022, the landlord wrote to the resident to inform her that it was undertaking an investigation into alleged breaches of her tenancy and potential tenancy fraud. It advised that it wanted to undertake an interview under caution in line with the Police and Criminal Evidence Act 1984 (PACE interview) and asked that she make contact to arrange a convenient date.
On 3 November 2022 the landlord held an interview under caution with the resident as part of its fraud investigation.
On 12 December 2022 the resident enquired about a mutual exchange with a someone who lived in local authority accommodation close to the university she attended. The landlord informed the resident that this would not be possible while a valid notice seeking possession had been issued. It further noted that some mutual exchanges are restricted to residents with a local connection to an particular area.

Complaint 1

On 26 July 2022 the resident wrote to the landlord querying why this matter was being investigated as it was impacting on her ability to continue with her studies. She said that she needed clear direction regarding her request to be absent from her home. The landlord treated this as a formal complaint.
On 27 July 2022, the landlord acknowledged the resident’s complaint. It advised that it aimed to respond by 23 August 2022. This deadline had been extended from 1 August 2022 due to demands on the service.
The landlord sent its provisional response to the resident on 10 August for comment
The landlord issued its final stage one response on 23 August 2022. It said that it was aware that the resident’s circumstances had changed, and she wished to now be absent from the property for additional days each week. The landlord said that its legal team were investigating this matter, and it was waiting for them to respond with advice. It apologised for the delay in providing a full response and explained that this was due to workloads and capacity issues. It noted that this was a service failure and upheld the resident’s complaint. No redress was offered.
On 7 September 2022 the resident asked to escalate her complaint. The landlord acknowledged the request on the same day and said that she should receive a response by 21 September 2022.
On 20 September 2022, the landlord responded to the resident’s complaint at stage 2. It stated that it was correct to uphold the resident’s complaint at stage 1 and it offered an apology for the delay. It said that it could find no fault in the original investigation or outcome and was therefore not able to uphold her complaint.

Complaint 2

On 24th August the landlord issued its provisional investigation response to the resident’s stage 1 complaint logged on 23 August 2022. This was in relation to her request to appeal against the decision made by the landlord about the number of days she was permitted to be absent from the property.
On 5 September 2022 the landlord provided the resident with its final stage 1 complaint response. It stated that:
1. The resident had asked to be granted permission to be absent from her home for five nights per week. She had explained that a taxi would cost £90.00 for one trip to university. She said that if she travelled by public transport each day, she would not arrive in time for her son to start school at 9am.
2. The resident has been granted four nights absence from her tenancy each week in order for her to continue with her university course and for her son to attend school in her university city. The Council agreed to honour this agreement but declined her request to be absent from the property for 5 nights per week. This decision was made as the property “must remain her main and sole home”. This did not preclude the resident from taking holidays. The above advice was sought from the Council’s Legal team. The complaint was therefore not upheld.
On 5 September 2022, the resident asked that her complaint be escalated to stage 2. On 7 September, the landlord acknowledged the resident’s escalation request and notified her that it sought to respond by 21 September 2022.
The landlord responded at stage 2 of its complaints procedure on 16 September 2022. It concluded that the decision at stage 1 had been reached considering legislative requirements, tenancy terms, policies, and procedures. It said that it could not uphold her complaint and that the Council’s permission for not more than 4 nights away from home would remain in place. The resident asked to escalate the complaint again and she was directed to this Service.

Complaint 3

On 20 September 2022 the resident raised a further complaint with the landlord. She said that she was being discriminated against as a single parent. This was because her tenancy agreement stated that she did not need permission to be away from her home for less than 28 days and that absences in excess of 28 days were allowed if she provides an emergency contact.
The landlord provided a provisional response to the resident’s complaint on 26 September 2022. She was asked to include any comments before the final response was issued to her.
On 4 October 2022, the landlord issued its stage one response to her complaint. It said that:
1. It was a term of the tenancy agreement that the resident must notify the landlord in writing if she intended to be away from her home for more than 28 days. The landlord had considered whether, in doing so, it had discriminated against the resident and concluded that it had not.
2. While the resident had originally requested permission from the landlord to be absent from the property for several days a week, and the landlord had consented to this, the landlord’s consent was not required.
3. It had a duty to ensure that she was complying with the terms and conditions of her tenancy agreement, in particular that she was occupying the property as her only or principal home. Where it had concerns that this may not be the case, then it would not encourage her to be away from her home for more than 4 nights on a regular basis.
On 4 October 2022 the resident asked that her complaint be escalated to stage 2. She said that the landlord was not entitled to tell her how many nights she stayed in her home and that its response was discriminatory. The landlord acknowledged her request that day and informed the resident that she should have a response by the 18 October 2022.
On 18 October 2022, the landlord issued its stage 2 complaint response. It reiterated its response that the resident was obliged to comply with the terms of her tenancy agreement and that it did not consider that it had acted in a discriminatory way towards her. Her complaint was therefore not upheld.
On 18 October 2022 the resident said that she would refer the matter to this Service for investigation.

Complaint 4

On 1 October 2022, the resident made an additional complaint to the landlord. She raised the following points that:
1. The landlord had been making enquiries about her lodger and she felt that it had no right to do so as she was entitled to have a lodger stay with her.
2. The landlord had not engaged with her when she had enquired what information she needed to provide to establish her living arrangements. The matter had been very upsetting for her.
On 12 October 2022, the landlord wrote to the resident to inform her that her letter of 1 October had not been treated as a formal complaint as it related to previous complaints raised or general requests. It asked if she wished to raise a new complaint in relation to her point that the landlord had been “unduly obstructive” and that officers had failed to advise her of what she needed to do to establish if she had been residing in the property as her only or principal home. It asked for further information about the officers involved and their actions.

Complaint 5

In December 2022 there was a further email exchange between the landlord and resident about several matters including a mutual exchange, her tenancy ceasing to be secure and the failure of the landlord to hold a review meeting,
On 16 December 2022 the resident raised a further complaint with the landlord about the amount of time the investigation had taken and that this was not a proper use of public funds. She also raised that its legal team had not been in contact with her.
On 19 December 2022, the landlord wrote to the resident to confirm that it had treated this as a new complaint and summarised the matters it sought to consider below:
1. The resident did not believe that her tenancy ceased to be secure following the notice to quit.
2. The resident was unhappy that her right to buy and mutual exchange rights had been suspended.
3. She had not been given adequate time to get legal advice before the landlord made a decision about her tenancy.
4. She was unhappy with how the PACE interview had been conducted.
5. A stage 2 letter was dated 16 September 2022, but it was not emailed to her until 20 September 2022.
On 5 January 2023, the landlord issued its provisional complaint response for the resident’s comments. The resident responded with further information on 5, 6 and 11 January 2023.
On 13 January 2023 the landlord issued its final stage 1 complaint response in which it:
1. Advised the resident that the landlord considered that her tenancy had ceased to be secure as one of the tenant conditions was no longer met. The investigation was ongoing. It had taken a significant amount of time due to capacity issues and that it had been waiting for information from other agencies as part of its investigation.
2. The resident’s mutual exchange rights had been suspended as the landlord had served notice to end the resident’s occupation. This would remain so until the notice was withdrawn or there was an outcome via the court for possession proceedings.
3. Stated that the resident has had the benefit of legal advice throughout. Further, the landlord would not be able to apply to court until 28 days after the notice was served and the notice was effective for a year, which meant that the resident had adequate time to obtain further legal advice.
4. The landlord had advised the resident of the process in advance of the PACE interview. Further, it stated that it was not obliged to offer a review meeting prior to service of notices.
5. It confirmed that the stage 1 complaint response letter was sent to the resident by email on 16 September 2022.
The resident asked to escalate her complaint on 17 January 2023.
On 10 February 2023, the landlord wrote to the resident to inform her that her stage 2 response would be delayed as it was waiting for further information from its legal team. It said that it would respond by 28 February 2023.
On 28 February 2023, the landlord wrote to the resident to advise that the response deadline would be extended until 14 March 2023 due to staff shortages.
The landlord responded at stage 2 on 15 March 2023 in which it stated that it had reviewed the stage 1 response and that all the evidence provided by the resident had been considered. It concluded that the complaint had not been upheld.

Post complaint

The landlord later confirmed that a decision had subsequently been made not to commence possession proceedings and that the notice to quit and notice of seeking possession were withdrawn in September 2023. The landlord informed this Service that the resident has since moved property via a mutual exchange.

Assessment and findings

Scope of the investigation

In her complaint to the landlord and this Service, the resident stated that her mental health had been affected by the landlord’s actions. The Ombudsman has not sought to determine whether this was the case as this is a matter which is best decided by a court following a claim of injury or damages. However, this investigation has considered how the landlord responded to the resident’s concerns about the impact on her health in line with the Ombudsman’s approach, which is set out at the start of this report.
The Ombudsman cannot draw any conclusions as to whether the landlord unlawfully discriminated against the resident in its decision–making. The proper forum for this matter to be determined would be in the courts. What the Ombudsman can look at is whether the landlord followed its policy and procedures and acted reasonably based on the information it has shared with this Service, taking into account its legal obligations. The Ombudsman can also consider if the landlord had addressed the resident’s concerns about discrimination in its complaint response.
The resident has raised matters relating both to the suspension of her right to buy in her complaint and the involvement of a councillor regarding her complaint. In accordance with paragraph 42(j) of the Scheme, the Ombudsman may not consider complaints which, fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body. Should the resident wish to pursue this aspect of her complaint, she should contact the Local Government and Social Care Ombudsman (LGSCO) who will consider complaints relating to separate housing matters such as the right to buy.
It is also noted that there has been a very significant amount of correspondence between the resident and the landlord. Whilst the resident’s dissatisfaction with the landlord is duly noted, the report will not be addressing each specific issue or incident referred to. Rather, the Ombudsman has carefully considered all the available evidence and this report will take a view on the landlord’s overall handling of the matter.

Notice to Quit

The resident had acted in accordance with her tenancy agreement by notifying the landlord in September 2019 that she was embarking on a course of education and a lodger was moving into the property in her spare room. She asked the landlord if she had permission to be absent from the property for 3 days per week and the landlord consented to this.
Further enquiries were made of the resident in 2020 following reports that she was not living at the property, however the landlord was satisfied with her explanation for her absence at that time.
It was reasonable for the landlord to investigate whether the resident was occupying the property as her only or principal home following reports from several sources in May 2022 that she was no longer living there. Social landlords have an interest in identifying where homes have been fraudulently sublet. Recovering sublet properties means that they can ensure that their housing is only occupied by tenants who qualify for social housing in line with their allocation policies. It enables them to make best use of their housing stock, reduces their housing waiting lists and reduces the number of families placed in temporary accommodation pending an offer of suitable permanent housing. The subletting of social housing is a criminal offence, and the landlord was obliged to undertake investigations where it had reason to believe that an offence may have been committed.
The issue of the notice on 20 September 2022 was distressing for the resident. It is evident that she considered that she had volunteered enough information to the landlord regarding her circumstances and had co-operated fully with its enquiries. However, the landlord had a responsibility to ensure that tenants comply with their tenancy agreements. It had reason to believe that she was not living at the property and that her tenancy had ceased to be secure as a result. The Ombudsman acknowledges that there are significant demands on landlords in relation to its housing stock and that it has a duty to address non-occupancy.
It would have been reasonable for the landlord to have provided the resident with a formal warning letter about breaches to her tenancy prior to issuing notice, and it is not clear from the evidence if this had been done. However, the landlord had entered into correspondence with the resident prior to September 2022, advising that it was investigating whether she had breached the terms of her tenancy. The evidence provided by the landlord also shows that it considered its duties under the Equality Act 2010 in relation to the resident’s vulnerabilities, prior to serving notice. It concluded that it was proportionate to issue notice given the evidence it had at that stage regarding potential tenancy fraud.
The landlord’s communication with the resident was somewhat confusing in that it had permitted the resident to be absent from her home for 4 and not 5 nights per week. However, the resident’s tenancy agreement only stipulated that the resident must inform it in writing if she was to be absent from her home for more than 28 days. The landlord did later clarify in its complaint response of 4 October 2022, that while its permission was not required for an absence, if it had reason to believe that she was not occupying her property as her only or principal home, then it would undertake an investigation which could result in it bringing legal proceedings against her. The landlord was also entitled to withdraw consent from the resident’s mutual exchange application on the basis that notice had been served on the tenant.
The landlord’s position that the resident had sufficient time to obtain legal advice before it made a decision about her tenancy was reasonable. The resident had sought and obtained legal advice from Shelter in advance of both notices being issued. The landlord’s letter included information about the steps a landlord would need to take to recover possession of the property and provided details of advice agencies that could assist her. The resident referred to complying with the pre-action protocol and the review process, but it is not evident that the landlord was required to do so.
Neither the landlord nor resident have provided evidence that the PACE interview had not been conducted in accordance with legal requirements. It is noted that the resident was unhappy that she would not be entitled to public funding for legal representation at the meeting, however this was not something that was within the landlord’s control. Any investigation into potential fraud would need to be undertaken in a way that met with evidential requirements for a criminal prosecution. The landlord acted reasonably in providing detailed answers to the resident’s queries in advance of the interview.
While the resident was entitled to have a lodger to stay with her and did not need to obtain the landlord’s permission for this, under the terms of her tenancy and the 1985 Act, she was not entitled to sublet the whole of the property. As the landlord considered that she may not have been living at the property, it was reasonable for it to make further enquiries about the names of the people who had been living there and the dates of their occupancy, to establish whether the resident had ceased to occupy and whether an offence had been committed.
The resident had said that she was unhappy that the landlord had not engaged fully with her when she had asked what she had to do to establish her living arrangements. It is understandable that the resident was frustrated at the landlord’s reticence in this regard. However, as the landlord was undertaking an investigation as to whether fraud had been committed, or whether it should commence civil proceedings to recover possession of the property, it may not have been obligated to divulge the details of the basis for its investigation to her if it considered that to do so may frustrate the legal process. However, it did clearly advise her of this, and it signposted her to obtain her own legal advice, which was appropriate.
It is also clear that the length of time it had taken for the landlord to conclude its investigation had caused the resident distress and had impacted on her future plans. This Service acknowledges that the investigation was lengthy, however it was a complex investigation dependent on information from third parties. Further, the landlord’s legal team needed to be satisfied that the evidential threshold had been met to justify court proceedings. The Ombudsman therefore makes no finding as to the resident’s complaint about the timescales of the investigation.
While the Ombudsman acknowledges the impact on the resident, the landlord was obligated to investigate reports of tenancy fraud and take appropriate action based on its findings. Overall, the Ombudsman considers that the landlord’s actions were proportionate in the circumstances, and it acted in accordance with its policies, procedures, and legal obligations. A finding of no maladministration has therefore been reached in relation to this aspect of the complaint.

Complaint handling

Overall, the landlord complied with its complaint’s procedure in its response to the resident’s complaints. Out of the 5 complaints submitted by the resident, there were 2 complaints where there was a significant delay in the landlord’s response, although the resident was informed of the reason for delays and given a new target response date in advance of the deadline. While the landlord acknowledged a service failure with one of the delayed responses, it did not do so with the second one. However, the landlord would have acted in accordance with the Code if it had good reason to delay its response and it had advised the resident in advance of revised timescales and that she could refer the matter directly to this Service if she did not agree to extend the deadline. In this instance, the landlord complied with the Code as it said that it was waiting for further information from its legal team in order to review the complaint, and the resident was directed to this Service.
However, where the landlord had acknowledged service failure in relation to the first complaint, it had not offered redress. The Ombudsman has therefore ordered the landlord to pay the resident £90 in compensation taking into account the Ombudsman’s remedies guidance as well as the landlord’s compensation policy. An uplift has been applied, in accordance with the Ombudsman’s remedies guidance, on the basis that there were aggravating factors in this case which would justify a higher award, namely the resident and her son’s vulnerabilities and the fact that the resident has a dependent child.

Determination (decision)

In accordance with paragraph 52 of the Scheme there was no maladministration by the landlord in its decision to issue the resident with a Notice to Quit.
In accordance with paragraph 42(j) of the Scheme, the resident’s complaint about the landlord’s handling of her personal data is outside of the Ombudsman’s jurisdiction to investigate.
In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in its complaints handling.

Reasons

The landlord acted reasonably and in accordance with its legal obligations and policies by investigating reports of tenancy fraud by the resident and serving notice to quit and a notice seeking possession. Although the investigation was lengthy, with no further action taken against the resident and the notice withdrawn, the landlord was dependent on information from third parties and the advice of its legal team to determine whether the threshold for legal action had been reached.
The Ombudsman cannot consider complaints which are outside of its jurisdiction to investigate, in accordance with the Housing Ombudsman Scheme. Complaints about personal data breaches should be directed to the Information Commissioner’s Office.
While the landlord acknowledged service failures for delays in responding to the resident’s complaint, no redress was offered. This has been identified as a failing by this Service and an order of compensation has been made as detailed below.

Orders

Within four weeks of the date of this report, the landlord is to pay the resident an amount of £90 in compensation for the distress and inconvenience caused to her on account of its complaint handling failures. The landlord is to confirm with this Service once payment has been made.