Royal Borough of Kensington and Chelsea (202211153)

REPORT

COMPLAINT 202211153

Royal Borough of Kensington and Chelsea

12 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 the landlord’s handling of:
1. The resident’s request to transfer the tenancy into her name.
2. The resident’s request to book repairs.
3. The resident’s reports of concerns of the conduct of a member of staff.
4. The management of the rent account.

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.
Paragraph 42(c) of the Housing Ombudsman Scheme sets out that a resident is expected to bring their complaint to the attention of the landlord within a reasonable time of the problem occurring. This is normally within six months.
When making a formal complaint contemporaneously, it makes it possible for a thorough investigation of the issues and increases the chances of matters being resolved satisfactorily and at the earliest opportunity. Making a formal complaint at the time, means that any staff concerned are available to comment, evidence is more likely to be available and that alleged perpetrators have a chance to respond to the allegation/s and where appropriate, to change their behaviour to put things right.
After carefully considering all the evidence, in accordance with paragraph 42(c) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:

c. The resident’s reports of concerns of staff conduct.

d. The management of the rent account

In her complaint regarding the issues mentioned above, the resident specifically refers to incidents that occurred at least 3 years prior to submitting a complaint.

Background and summary of events

Background

At the time of the complaint the resident was occupying a 2 bedroom multi storey local authority flat with her 2 children. She was not the tenant but had been granted a home Occupation Order by the Courts to allow her to stay in the property. The Order, which had been granted alongside a non-molestation order, prevented her now ex-husband, who was the sole tenant, from entering the property.
The Occupation Order was granted on 19 July 2018 and was extended on various occasions on further application to the Courts. The Order granted the resident to exclusive occupation of the property.

Scope of investigation

The Ombudsman takes an inquisitorial approach rather than an adversarial one. In practice this means that we act impartially while investigating disputes rather than taking up a one side of the dispute or another. Our overriding principles demand that we are fair to all parties within the process and this approach assists in this aim.
This approach also means that we do not act like a court, considering opposing positions or stances on a matter or providing answers to all the issues and questions raised by a resident. It is not our role to weigh or compare different positions to decide who is right or wrong. We aim to resolve disputes and make an objective determination on the cause of landlords’ and residents’ disagreements. Where we find mistakes, we aim to find ways to put things right, create opportunities to learn and improve landlords’ service in the future for all tenants.
The resident has explained that her mental well-being has been adversely impacted by the issues experienced. While this Service acknowledges that the resident has expressed concerns about the impact on her mental health. The Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more appropriately dealt with as a personal injury claim through the courts or the landlord’s liability insurer (if it has one). This is a legal process and the resident should seek independent legal advice if she wants to pursue this option.
The Ombudsman is not able to investigate issues that post-date the completion of the landlord’s complaints process, other than to ensure that the landlord has followed through on any agreements it might have made during the course of this process. Consequently this investigation will not consider how the landlord handled the transfer of the tenancy into the resident’s name once it was granted by the Court, as this occurred after the completion of the internal complaints process.

Summary of events

On 22 September 2021, the Local Authority Family and Children’s Services wrote to the landlord explaining that following the relationship breakdown, the unresolved housing situation was having a negative impact on the resident and asked it to transfer the tenancy into the resident’s name.
An internal email dated 30 September 2021 stated that the resident had refused the option of a management transfer, instead opting to request that the Courts transfer the tenancy into her name. The email explained that the landlord had advised the resident that the option of a management transfer remained open for her to consider. It added that she was being supported by a support agency and that it (the landlord), had no further involvement in the matter.
The landlord has provided evidence dated 10 February 2022 which showed that it had advised the resident’s ex-husband that it could not overturn the occupation order that had been granted by the Courts.
On 28 June 2022 the resident submitted a stage 1 complaint to the landlord over the telephone. She explained that:
1. When reporting repairs she was expected to explain her situation regarding the Occupation Order each time to the landlord, as her name was not recorded on the tenancy. The resident stated that she felt she was treated unfairly.
2. She reported a blocked sink in September 2021, an operative attended after a month to investigate but the problem persisted.
As a resolution, the resident wanted:
1. The tenancy transferred into her name as soon as possible.
2. A record held on the landlord systems so she didn’t need to explain her personal circumstances each time she called.
3. The landlord to be more helpful.
The landlord sent an internal email dated 7 July 2022 raising a job to fix a blocked sink at the resident’s property, that had been ongoing since the previous year and had caused damage to kitchen units. Evidence showed that the landlord contacted the resident to arrange an appointment but that she said she did not want to speak with the landlord.
On 11 July 2022 the landlord responded to the resident’s complaint. It stated that it understood her complaint to be that she was:
1. Unhappy that the landlord refused to transfer the tenancy into her name, despite having an occupation order allowing her to live at the property.
2. Dissatisfied with the process for reporting repairs and that there was an outstanding repair at the property.
The landlord explained that it had investigated the complaint and spoken with teams from the relevant departments and set out its findings.
The landlord stated it had advised the resident to seek independent legal advice regarding the occupation order and tenancy transfer and that she could ask for a property transfer order to be made. It explained that in cases like this it was required to remain neutral to both parties and was satisfied that the landlord had demonstrated impartiality.
The landlord added that on 17 September 2018 it had explained to her that the tenancy remained in her ex-husband’s name, and it could not be transferred to her without the consent of the named tenant or a property adjustment Order from the court, which she was advised to apply for. In addition it stated that it had been in contact with her solicitor on 8 October 2018 who had asked about the possibility of the landlord providing her with temporary accommodation. The landlord stated that it had explained to her solicitor that she would need to discuss with the landlord’s housing opportunities team.
The landlord further explained that on 31 January and 28 May 2019 it had spoken with the resident’s ex-husband and reiterated that it could not intervene in domestic matters or breach the court order temporarily preventing him from occupying the property.
In its response the landlord set out various occasions when it had remained impartial and provided appropriate advice to both parties with regard the tenancy transfer and the adherence to the Court Order.
The landlord added that it would arrange separate meetings with both parties to obtain a further update on any Court proceedings.
In relation to reporting disrepair, the landlord apologised for the distress caused to the resident when reporting repairs. It explained that it was required to comply with GDPR and to that end had to confirm it was speaking with the correct person or their representative. It offered the resident a solution for future calls.
The landlord apologised for the blocked sink and the inconvenience it may have caused, and also for the delay in responding to the initial report in September 2021. It said that it had received a report of a blocked sink on 27 September 2021 and a job order was raised. The contractor attempted to call the resident on 1 October 2021 but failed to get a response and reported this back to the landlord. The landlord could not find any record of it attempting to contact the resident again until a further report was received on 28 October 2021. The job was passed to an appropriate contractor who attended on 2 November 2021 and unblocked the sink.
The landlord explained that it had received a report of an uncontainable leak at the property on 17 April 2022, an operative attended the same day and carried out a temporary repair. The job was passed to another contractor for more comprehensive repairs, they attended the same day and cleared a blockage in the stack. The landlord acknowledged that the resident had reported another blockage as part of her complaint and explained that the job had been passed to an appropriate contractor to resolve. In addition it stated that it had arranged for a repairs supervisor to inspect the kitchen units for water damage. The landlord added that it had attempted to arrange an appointment with the resident to visit the property on 14 July 2022 but that she had refused to allow the repairs to be completed or an inspection to take place until she had sought legal advice.
The landlord apologised that the blocked kitchen sink was not resolved sooner. It accepted that it should have contacted the resident when it became aware that the contractor had failed to make contact and that it should have made more attempts to investigate the cause of the blockage when it was reported on 17 April 2022. It recognised that its failure to do this inconvenienced the resident and explained that staff had been instructed to ensure they proactively investigate repeated repairs to establish how they could be resolved quickly.
The landlord added that it hoped the resident would allow the repairs team access to the property in order that it could resolve the blockage. The landlord confirmed that it had partially upheld the resident’s complaint and as a resolution for the disturbance and inconvenience caused by the blockage and the time and trouble taken to resolve them it offered the resident £300 in compensation.
On 14 July 2022 the Family and Children’s Services team wrote to the landlord to reiterate the impact the unresolved housing issues were having on the resident. The landlord responded that the resident was not a tenant and it had been explained to her that she would need to present as homeless.
On 22 July 2022 an internal email exchange confirmed that there was a commitment made to both parties to get an update on the case, but that it could not offer a discretionary tenancy to the resident. It confirmed that it could not assign the tenancy to the resident, nor could it allow the ex-husband to return. The landlord was aware that there was a date set for a Court hearing on 28 July 2022 to determine the tenancy.
On 25 July 2022 the landlord contacted the resident to establish if she had made any progress in resolving the tenancy issue. It explained that the best option available to her was to seek a resolution through the Courts or to present as homeless. It reiterated that it had to remain neutral to both parties but offered further assistance if required.
An internal email dated 1 July 2022 the landlord confirmed that the outcome of the court proceedings in relation to the tenancy would determine how it proceeded.
The resident escalated her complaint to stage 2 on 5 August 2022. She stated that following her complaint and the landlord’s subsequent response she had received a mixture of at least 8 telephone calls and messages from the landlord. The resident explained that she did not want to talk to the landlord and that she would take legal advice. The resident added that she had audio recordings of landlord staff speaking to her in 2019 in relation to her personal circumstances and that the recording demonstrated that the landlord accepted the ex-husbands account of the circumstances over hers. In a follow-on email dated 8 August 2022 the resident stated that the landlord had caused her psychological damage and that she suffered panic attacks.
The landlord responded to the stage 2 complaint on 16 August 2022. It set out its understanding of her complaint and apologised if she did not feel properly supported by the landlord. It added that:
1. It was committed to supporting victims of domestic abuse.
2. In addition it explained that it did not have a legal right to intervene in the tenancy dispute between the resident and her ex-husband and that it had explained this to both parties. It confirmed that her ex-husband remained the secure tenant of the property although not legally entitled to live there at that time, consequently it could not transfer the tenancy into her name. It added that it had also explained to her ex-husband that it did not have the power to overturn the court order to allow him to return to the property.
3. The landlord explained that it had legal obligations towards both the resident as the occupier of the property and the ex-husband as the registered tenant and that it was not taking sides.
4. In respect of the resident’s request for the landlord to cease contact, it explained that it could not legally agree to that. It added that as the landlord it had a legal obligation to maintain the property in a habitable condition and as such had a right of access in order to undertake the necessary works to achieve that. It explained that there would be occasions when it would need to contact the resident to arrange access.
5. The landlord added that it understood the resident was frustrated that she had to explain her personal circumstances each time she attempted to report a repair. It reiterated that it had a legal obligation to comply with GDPR. Nonetheless, it explained that it had arranged for a prominent note to be added to its systems to notify call handlers of her right of residence, and that all communication regarding the arranging of any works at the property should be sent directly to her rather than the registered tenant. It added that it would review this following the court hearing.
6. The landlord maintained its willingness to inspect the kitchen units to ascertain if there was any damage caused by the leak and added that it would wait for the resident to make contact about this.
The landlord concluded that it could have done more at stage 1 and beforehand to arrange a work around on its system, to make the resident’s experience when communicating with the landlord easier. It partially upheld the resident’s complaint.

Assessment and findings

Landlords policies and obligations

The landlord’s repairs policy explains that a resident can report a repair by telephone, online, by email or in person, and that on first contact, a resident will be given an appointment slot and completion date.
Different types of repair are given a different priority and the timescale for completing a repair is dependent on its priority. The landlord classes a minor leak as urgent, and gives a response time of 5 working days.
The policy also explains that there may be occasions when it is essential for the landlord to enter a resident’s property to complete an inspection or a repair.
The landlord sets out that it is committed to ensure that it observes The General Data Protection Regulation (GDPR) and the UK Data Protection Act 2018.
The landlord’s tenancy policy sets out how it will issue tenancies to the social homes it owns and manages. Section 11.6 states that a tenancy can be assigned by Court Order in a number of circumstances, including family law or relationship breakdown. Where such a Court Order is made, the assignment instructed by the court will be accepted by the landlord. The date of assignment is set by the court

The residents request to transfer the tenancy into her name

In its stage 1 response the landlord explained that it had spoken with the resident and her solicitor, as far back as 17 September 2018, in respect of her request to transfer the tenancy into her name. In addition it stated that it had advised she discuss her housing options with the Housing Options Team. Whilst this Service has not seen evidence of that particular conversation, the fact that it occurred has not been disputed by the resident and therefore its reasonable to assume that it took place.
The resident also pursued the request to transfer the tenancy into her name on 22 September 2021 via an advocate, who explained to the landlord that the unresolved housing situation had negative impact on the resident’s well-being. We have not seen a response from the landlord in relation to that disclosure.
However, evidence provided suggests that the landlord had discussed the possibility of a management transfer with the resident. But that she had refused this offer in favour of seeking a tenancy transfer order. It is not clear to this Service when this discussion took place or the extent of it.
The following year the same advocate wrote to the landlord again expressing her concern the unresolved housing situation was having on the resident. On this occasion the landlord responded that it had explained to the resident that as she was not a tenant she would need to present as homeless.
The landlord was clear that it had a duty to both parties and could not over rule the decision made by the courts and assign the tenancy to the resident. The landlord was right that it could not over rule the occupation order, and consequently correct in refusing to transfer the tenancy to the resident without an order from the court to do so. The landlord was correct to remain neutral on the matter of the tenancy transfer.
Nevertheless, the landlord was aware of the resident’s circumstances and had been made aware that the unresolved housing situation was having a negative impact on her well-being. It would therefore have been reasonable for the landlord to have been more empathetic in its responses. Given the precarious nature of the resident’s security of tenure and the fact that she was vulnerable because of this, the landlord could have exercised more empathy. An appropriate recommendation will be made to the landlord in respect of this.
This Service finds no maladministration in the landlord’s handling of the resident’s request to transfer the tenancy into her name. The landlord was correct not to transfer the tenancy without an explicit order from the Court, and evidence provided appears to show that it had given the resident information regarding her housing options.

The landlord’s handling of the resident’s request to book repairs

In her complaint, the resident expressed that she found the process for booking repairs stressful. She explained the impact of having to explain her personal circumstances each time, and said that she found it distressing.
The resident also complained about an outstanding leak that she had reported 9 months earlier and further explained that it had damaged kitchen cupboards.
In its stage 1 response the landlord reasonably explained that it had a duty to comply with GDPR regulations and consequently had a duty to ensure it was not divulging information, without permission to do so.
However, it also acknowledged that the process of explaining her circumstances each time she called would have caused her distress. To that end it recommended a solution with the aim of avoiding upset and speeding up the call process. This was a reasonable and appropriate response, and demonstrated that the landlord recognised the impact it had on the resident and that it was willing to find a mutually acceptable solution.
In response to the blocked sink and subsequent leak, the landlord apologised for the inconvenience this would have caused and explained what went wrong, demonstrating that it had investigated the complaint. As a resolution the landlord arranged for an operative to attend the property to fix the leak and in addition offered compensation of £300 to reflect the inconvenience the leak would have caused. This was a reasonable response and in line with its compensation policy.
The landlord reviewed its actions further in its stage 2 response and accepted that it should have done more to reduce the inconvenience to the resident without breaching data protection rules. It put in place a solution that would avoid the resident having to explain her personal circumstances and ensured that all communication regarding arranging repairs would be sent directly to the resident.
This was a reasonable approach and demonstrated that the landlord was solution focused and keen to ensure the process did not disadvantage the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request to transfer the tenancy into her name.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was reasonable redress in the landlord’s handling of the resident’s request to book repairs.
In accordance with paragraph 42 of the Housing Ombudsman Scheme the landlord’s handling of the resident’s reports of concerns of the conduct of a staff member falls outside of the Ombudsman’s jurisdiction
In accordance with paragraph 42 of the Housing ombudsman Scheme the landlord’s management of the rent account falls outside of the Ombudsman’s jurisdiction.

Reasons

The landlord correctly advised the resident that it could not act contrary to a Court Order.
The landlord recognised its failings and proposed an appropriate solution to avoid causing the resident further distress and offered a reasonable amount of compensation.
The issues are outside the Ombudsman’s jurisdiction.
The issues are outside the Ombudsman’s jurisdiction.

Orders and recommendations

Orders

Within 4 weeks of the date of this report, the landlord is ordered to pay directly to the resident the £300 it offered in its stage 1 response, if it hasn’t already done so. The landlord is ordered to provide evidence to the Ombudsman that the compensation has been paid.
The landlord is ordered to review its repairs booking procedure to include the changes it applied for this resident, so that they apply to other residents who may find themselves in a similar position. The landlord is ordered to provide evidence of compliance with this order within 6 weeks of the date of this report.

Recommendations

The Ombudsman recommends that within 6 weeks of the date of this report the landlord considers the recommendations made in the recent Spotlight report on Attitudes, respect and rights – Relationships of equals’. It is recommended that the landlord considers how to apply the recommendations in respect of consideration of temporary vulnerabilities.