Thanet District Council (202232495)

REPORT

COMPLAINT 202232495

Thanet District Council

18 March 2024

(Updated following review on 1 August 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:
1. visit to the resident’s property.
2. approach to managing the resident’s behaviour.

Background

The resident has been an assured tenant at the property of the landlord since 31 March 2016. The landlord is a local authority. The property is a flat and the resident lives on his own.
Following a telephone call from the resident on 18 August 2022 during which the resident advised he did not wish for his telephone number to be stored on the landlord’s system, the landlord communicated with the resident via email only.
The landlord attended the resident’s property on 1 November 2022 as it said the email conversations it had with the resident with regards to rent arrears prior to this date had not provided an explanation for non-payment of rent. The Ombudsman asked for these emails as part of the evidence requested in this case but was only provided with emails relating to the resident’s rent account in 2021.
The resident made a formal complaint to the landlord on 1 November 2022, following the visit. He said:
1. He had a right to peaceful enjoyment of his property without disturbance from the landlord.
2. The landlord had attended on that date without any agreement and knocked on his door with the intent to gain access or disrupt him.
3. The landlord was aware he was autistic, and therefore contact was to be made via email only.
4. Following the visit, he had gone downstairs, and the landlord’s staff were not interested in speaking to him, despite him providing evidence that he had paid his rent. He said they had walked off and refused to communicate.
5. He wanted to see a copy of the recording of the event.
On 2 November 2022, the landlord advised the resident via email that it had sent via post a written warning about his behaviour towards its staff members following the visit. The written warning detailed the behaviour the landlord had asserted was the reason for the warning and linked the behaviour to the resident’s obligations under his tenancy agreement.
In its stage 1 response on 16 November 2022, the landlord defined the complaint to be about the resident’s feeling that it had breached his right to peaceful enjoyment by carrying out an unannounced visit and that he did not accept the warning given with regards to his behaviour during that visit. With regards to the first complaint, it did not uphold it and said:
1. It had not breached the resident’s right to quiet enjoyment because it was the first time that the rent team had visited him. Its staff did not enter his home, nor did they ask to enter. They had visited as he was in rent arrears.
2. It visited residents in rent arrears as part of its procedures when all other communication had failed.
3. It noted that the resident had asked the landlord to communicate via email. The email conversations had failed to provide an explanation for non-payment of rent, no agreement was made to pay the arrears, and the resident had given a “clear expression that [he] was unwilling to cooperate further.” It is important to note that the landlord did not evidence this when asked to by this Service.
4. The purpose of its visit was to meet face to face to see if there was any help that it could offer in paying the rent and to discuss an agreement.
5. Without first following the procedure of attending a resident’s property, the landlord would consider its legal options.
With regards to the second element of the complaint, it did not uphold it and said:
1. The evidence it relied upon came from interviewing both members of staff involved in the meeting with the resident.
2. It would not be retracting the warning, as no evidence had been supplied that would change the original decision.
In responding, the resident said he would reply in full in due course. He said he had supplied recordings as proof of the incident, and there was no evidence to suggest he had been aggressive. The resident requested escalation to stage 2 on 20 January 2023.
In its stage 2 response on 8 February 2023, the landlord said it was sorry that the resident felt aggrieved by the warning letter. It had reviewed the resident’s case and had nothing further to add. Therefore, the warning would remain on the resident’s record. The landlord said it understood that the resident did not like members of staff turning up unannounced and that he had made a previous complaint about appointments. The landlord said that regardless of the previous complaint, there were occasions where the landlord would need to visit when they could not get hold of a resident and they had members of staff in the area. It said that doing so did not breach the resident’s right to live peaceably. It did not uphold the complaint.
In referring to this Service, the resident said he had approached the members of staff from the landlord outside of his building after they had knocked on his door without an appointment. The resident said he had “lawfully challenged” them, filmed them, and was not aggressive but firm. The resident advised that he was autistic and worked nights, so waking him up after he had gone to sleep was “a big problem” for him. The resident said it was not his responsibility if the landlord did not like the content of his emails, and that the warning letter issued was based on what he considered to have been an “informal chat.” He said he had not been provided with any evidence of him being aggressive.
An undated statement provided to this Service from the landlord, about both the visit and the subsequent warning detailed the following:
1. The decision to issue the warning was based on the feelings and emotions of 2 experienced members of staff, and the video evidence provided by the resident “cemented” its decision. The Ombudsman has not been provided with the evidence submitted by the resident.
2. The landlord had visited the resident as he did not want to be contacted via phone. Email communication did not produce an agreement in relation to rent arrears, so an in person visit was the only remaining option.
3. The landlord’s staff had pressed the video doorbell, announced who they were, and explained the reason for the visit. The resident had said he could not believe they had visited unannounced and that he was asleep as he worked nights. They did not challenge the resident, they asked him to contact the landlord about his rent and left.
4. The resident then approached the members of staff while filming on his mobile phone. The landlord said the resident searching the block for them was concerning after they had agreed to leave at his request.
5. The decision to follow officers to a public place, communicate with them, and film them was not something the landlord expects its staff to deal with, and it considers this to be aggressive behaviour.
6. The resident had stated he had autism. The landlord had asked the resident about any support he might have required, but the resident had said he did not need anything and managed the autism himself. The Ombudsman has not been provided with any evidence in relation to the offer of support or when it was made.

Assessment and findings

Policies and procedures

The resident’s tenancy agreement states that if the resident does not meet the obligation to pay rent, the landlord can take court proceedings to evict the resident. It further states that the resident must allow access to the landlord to discuss any issues relating to the tenancy, unless otherwise agreed, and the landlord will give at least 24 hours’ notice. It states that the resident has a right to live in his home free from interference from the landlord unless the resident breaches any of the conditions of the agreement.
It further states that a resident is responsible for their own behaviour, and that includes how they behave in any area, including communal areas. It gives examples of behaviour that may be considered as harassment, intimidation, and abuse, including verbal abuse and threatening behaviour.
The landlord’s income recovery, including evictions and enforcement policy states with regards to rent arrears that its rent officers will always seek to put in place affordable and sustainable agreements to clear rent arrears. It states that as debt increases, the case would be moved through its rent arrears procedure until the debt is cleared.

Unannounced visit

The Ombudsman understands that the landlord and resident, at the resident’s request had an agreement in place that contact would be made via email only. The landlord’s position was that the resident was in rent arrears, and it had attempted to discuss this, via email, with the resident prior to the visit, but had not been able to agree a satisfactory outcome. Following a review the landlord evidenced these emails to this Service. The evidence provided to this Service was for rent arrears in 2021 and not for the period prior to this complaint. The landlord had committed to communicating via email with the resident, the evidence supports the landlord’s claim that email conversations had not been fruitful, therefore in this case, it was reasonable for the landlord to attend the resident’s property unannounced.
It is important to note that the landlord’s policy with regards to rent arrears does not make mention of visiting unannounced where rent arrears have built up. It states that it would put in place affordable and sustainable agreements to ensure arrears are cleared and advised that where that had not been successful, it would move through its rent arrears procedure. The Ombudsman has not been provided with the landlords rent arrears procedure, however, where a landlord is going to make unannounced visits for rent arrears, this should be linked to a policy and a recommendation has been made in relation to this.
The resident’s tenancy agreement states that he must allow access to any member of the landlord’s staff to discuss any issues relating to the tenancy and further states that the landlord will give at least 24 hours’ notice prior to requiring access. The landlord in this case arrived unannounced without giving any warning that it would be attending. The resident, in his complaint, argued that the landlord had an intent to gain access when it knocked on his door and therefore disrupt his right to use his property without disturbance from the landlord. However, the landlord did not gain access, and the evidence did not show an intent to do so; it rang the doorbell and left when the resident advised he was not available to talk.
It is disputed as to whether the landlord was aware of the resident’s diagnosis of autism prior to the unannounced visit. The resident has stated that the landlord was aware he was autistic, however the landlord has informed this Service that it has no recorded vulnerabilities for the resident. While a determination cannot be made either way, a landlord should ensure its records of resident’s vulnerabilities are updated and accurate. It is of concern to the Ombudsman that upon requesting further clarification with regards to the knowledge of the autism diagnosis, the landlord confirmed that it still had no recorded vulnerabilities against this resident despite the resident making the landlord aware of his diagnosis during this complaint.
It is of further concern that in its response to this Service, the landlord stated that the resident did not “present as vulnerable” in his interaction and communication with it. This statement is not appropriate. A resident does not have to present as vulnerable to be so. Landlords must ensure they are alive to the realities of any vulnerability and that its staff are appropriately trained with regards to vulnerabilities and the attitude towards them. An order has been made in relation to this.
The tenancy agreement requires the resident to pay rent and while the Ombudsman is not making a determination based on whether any rent was overdue or not, it was reasonable of the landlord to consider other methods of communication, including conducting face to face visits to find a suitable resolution for all. The Ombudsman’s “Spotlight on: Attitudes, respect and rights” highlights that for vulnerable residents “a simple knock at the door to check in on residents can help to maintain and improve the landlord/tenant relationship.” However, the Ombudsman understands that may not be the case for all residents and consideration must be given to individual tenant’s needs and contact preferences recorded.
The landlord has evidenced that it had attempted in the first instance to resolve the rent issues via email, the agreed communication method, in this case. It would have been appropriate for the landlord to give the resident advanced warning that if email communication did not prove successful, then it would conduct a home visit. However, the email chain shows the resident was intentionally choosing to withhold rent payments. The resident also made it clear that he would not contact the landlord. Given the tone and language of the resident within the email communication, it is understandable for the landlord to believe the resident would not have agreed to a visit. It was reasonable in these circumstances for the landlord to pursue an announced home visit. This was a more preferable resolution than the alternative of a court hearing.
This Service has seen evidence to support the landlord’s stance that its email conversations had not proved fruitful with the resident. The resident’s adamant refusal so engage with any communication with the landlord led the landlord to making an unannounced visit. The landlord appropriately left the resident’s property when asked to by the resident, who advised at the time he was asleep following a night shift. Taking into account all the circumstances and the evidence presented, it was necessary and appropriate of the landlord to arrive unannounced in this case.
Therefore, there was no service failure, in the landlord’s visit to the resident’s property.

Written warning

It is important to note that the Ombudsman’s role is not to determine whether the resident’s behaviour was as the landlord asserted. Instead, the Ombudsman’s role is to investigate whether the landlord’s response was reasonable and proportionate based on the evidence it had.
Following the reports of the resident’s alleged behaviour, the landlord interviewed its own staff to gain an insight into the incident. It was following this that the landlord decided to issue a written warning to the resident. It is reasonable for the landlord to rely on the opinion and evidence presented by its staff. Evidence suggests that the landlord discussed the reported behaviour with the resident and explained to him why the behaviour was not acceptable or spoke to him to hear his viewpoint. It was reasonable to speak to the resident to gain a broader insight into what had occurred and then make a decision on appropriate next steps following consideration of information from all parties.
Following his complaint and written warning, the resident submitted the recording he had made of the incident and accepted he had been “firm” but not “aggressive.” After seeing this, the landlord determined that the evidence provided compounded its view and therefore it did not revoke the warning. It was reasonable that the landlord considered and reviewed the evidence provided by the resident and it was entitled to confirm its decision following review of that new evidence.
In his complaint, the resident raised that the conversation he had with the landlord had been informal and that the informal chat is the only evidence the landlord had of the incident. The resident gave some examples of why an informal chat did not mean the outcome was true. While the conversation may have been informal, the resident’s tenancy agreement states that he is responsible for the way he behaves in any areas including communal areas. While the Ombudsman has not determined whether the resident’s behaviour was as the landlord asserted, in the circumstances, given that it was taking no further action, the landlord was entitled to decide a written warning was appropriate following its own investigations.
In managing the resident’s behaviour, the landlord relied on the evidence it had in front of it, and it linked the written warning to its policy and tenancy agreement. Therefore, it may have been reasonable for the landlord to decide it would deal with the matter by issuing a written warning. The landlord discussed the issues raised by its staff with the resident prior to the issuing of the warning, to explain why the behaviour was not appropriate and to obtain the viewpoint of the resident. This was a reasonable and fair approach prior to issuing the warning letter.
Therefore, there was no service failure in the landlord’s approach to managing the behaviour of the resident in this case.

Determination

In accordance with section 52 of the Scheme, there was no maladministration in the landlord’s visit to the resident’s property.
In accordance with section 52 of the Scheme, there was no maladministration in the landlord’s approach to managing the resident’s behaviour.

Recommendations

The landlord should consider the following:
1. Discuss with the resident and update the resident’s records to accurately reflect his autism diagnosis and any other relevant medical or vulnerability issues.
2. Assess itself against the Ombudsman’s spotlight report on Attitudes, respect and rights and ensure it embeds any learning into its policies and procedures.
3. The landlord should consider conducting a review its ‘Income recovery, including evictions and enforcement policy’ to ensure it properly highlights the procedure it will follow when rent arrears occur and ensure it links access to its rent arrears procedure to ensure transparency for residents.