London Borough of Tower Hamlets (16 006 931)

Category : Housing > Private housing

Decision : Upheld

Decision date : 15 Feb 2017

The Ombudsman's final decision:

Summary: Ms X alleges the Council failed to act on her behalf when she left or was evicted from a former tenancy and alleges fault in the Council’s handling of her complaint afterwards. There was fault because the Council’s recordkeeping was inadequate. However, the identified fault did not cause Ms X significant injustice.

The complaint

  1. Ms X alleges the Council failed to act on her behalf when she left or was evicted from a former tenancy. She also alleges fault by the Council because:
    • There was fraudulent recording and inconsistent reports.
    • The Council breached confidentiality and data protection.
    • There was collusion and dishonest practice.
    • The Council failed to resolve her complaint.
  2. Ms X wants an apology from the Council for its errors. She wants one of the Council officers disciplined and wants compensation for the loss of her property.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. She provides a free service, but must use public money carefully. She may decide not to start or continue with an investigation if she believes:
  • it is unlikely she would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify her involvement, or
  • it is unlikely she could add to any previous investigation by the Council, or
  • she cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint, or
  • it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

  1. I considered the complaint and correspondence sent to the Ombudsman by Ms X and the Council. I discussed matters with Ms X by telephone. I sought internal guidance on the Ombudsman’s jurisdiction. I sent a draft decision statement to Ms X and the Council and considered the comments of both parties in reply.

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What I found

  1. Ms X claims she was evicted from the property she occupied on 5 March 2015. On that day the wife of her landlord changed the locks to Ms X’s home. Ms X was in the property at the time and she called the Police and the Council.
  2. Ms X says she was escorted from her home by the Police. The Council’s officers spoke to the Police and, she says, advised them that the Council was considering prosecuting the landlord for changing the locks unless he restored her access.
  3. Ms X received advice from Shelter and a firm of solicitors that her landlord’s action amounted to an illegal eviction and so he could be prosecuted.
  4. The Council’s account of the day’s events shows officers were in conversation with the landlord. They told the landlord they had powers to prosecute especially when the landlord had been told of obligations by its officers. The landlord said he would give Ms X a key if she agreed not to allow strangers into the property to carry out unauthorised works. The Council’s note says its officers agreed to meet with the landlord on the following day to resolve the matter.
  5. Ms X was engaged in conversation with the Council’s officers on the following day. The officers told her they were nearby the property and asked her to meet them at the property.
  6. The discussions at the meeting were difficult. But the Council obtained a key for Ms X and restored her access. Ms X says the meeting was off chance and asserts the Council did not try to mediate on her behalf.
  7. Afterwards, Ms X told me she felt threatened at the property and so did not return. The Council’s officers say she told them she found alternative accommodation and did not want to return to the property. They say she arranged a time to pick up her property with the landlord.
  8. Ms X wanted the Council to prosecute the landlord but says officers sought to dissuade her in the conversations she had with them. She says the Council decided not to help her and closed her case.
  9. The Council wrote to Ms X later on to say her tenancy was an excluded tenancy and so was not offered protection under the Protection from Eviction Act 1977.
  10. Ms X says she could not plan her departure from the property and so she lost most of her belongings. She took legal proceedings against the landlord and settled the case some months later.
  11. Ms X then complained to the Council that its decision letter erroneously stated further action could not be taken because she did not have protection under the Act. Ms X said the property met the criteria for an assured shorthold tenancy.
  12. The Council accepted the decision letter was wrong to have stated Ms X’s tenancy was an excluded one. It said Ms X did not share living accommodation with her landlord which was the main reason its officer concluded her tenancy was an excluded one. However, the Council concluded her tenancy was a non-excluded tenancy. Under this type of tenancy the tenant lives in the same building as the landlord but does not share living accommodation with the landlord. The Council then explained the steps required of a landlord in order to terminate a non-excluded tenancy. The Council partly upheld Ms X’s complaint.
  13. In response, Ms X raised further queries about the Council’s actions. She provided more details on the property she occupied and the entrances and facilities. She asked the Council for its definition of a building; the legal action it could or should have taken regarding her eviction; whether it could have intervened differently; and whether it should have assisted her in identifying alternative accommodation.
  14. The Council’s second stage complaint response addressed some of these issues but not in a direct or itemised way. Ms X asked for the matter to be dealt with at the final stage of the complaints procedure.
  15. The Council’s stage three response provided more context to the actions taken by its officers. But overall, its view remained the same.
  16. Ms X’s further contact with the Council is noteworthy. She asked the Council to provide her with specific sections of housing legislation regarding definitions of non excluded occupier; building; and property. She asked the Council to clarify the actions it should have taken in response to the illegal eviction.
  17. Ms X said there were untruths in the file note provided by the Council. She said she did not approach officers informally in the office as she was instructed by a solicitor to contact the housing team by telephone when she was being held against her will in the property. She said she was not advised by any member of the team to complete a form. She denied saying she had found alternative accommodation. She pointed out she paid for a two night hotel stay on 5 March and had nowhere else to stay afterwards. She said officers asked her at the meeting on 6 March if she wanted to move back into the property to which she replied no.
  18. Ms X also raised further queries about the content of the file note and the time it was recorded. But the queries went unanswered. The Council decided she had exhausted its complaints process and referred her to the Ombudsman.

The Protection from Eviction Act process

  1. The law makes it an offence to:
    • Do acts likely to interfere with the peace or comfort of a tenant or anyone living with him or her: or
    • Persistently withdraw or withhold services for which the tenant has a reasonable need to live in the premises as a home.
  2. Local authorities have a power to start legal proceedings for offences of harassment and illegal eviction under the Protection from Eviction Act. If the evidence justifies it, a local authority can prosecute if it believes an offence has been committed.
  3. Withholding keys could amount to harassment. In terms of illegal eviction, a landlord’s right to get his property back can normally only be enforced through the courts. A landlord seeking possession from an assured or assured shorthold tenant must tell the tenant of his intentions to start court proceedings by serving a notice of seeking possession on the tenant. A landlord seeking possession from most other kinds of residential tenants or licenses must serve a notice to quit giving at least 4 weeks’ notice. In either case the tenant is not required to leave the property until the notice expires and even then may not be evicted without a court order.
  4. Someone who is protected by the Protection from Eviction Act 1977 may go to the county court to claim damages if they are harassed or illegally evicted.
  5. The Protection from Eviction Act does not set out steps required of local authorities investigating claims of harassment by landlords. However, guidance says local authority officers may be able to stop the harassment or persuade the landlord to reinstate an occupier at an early stage by explaining the law to the landlord either by telephone, letter or visit. The local authority may try to settle the dispute between the landlord and the occupier without any prosecution. Where it is clear that an offence has been committed and the occupier wants a prosecution then the local authority can prosecute.

Finding

The Council failed to act on Ms X’s behalf when she left the tenancy

  1. I am satisfied the Council took reasonable steps to intervene on Ms X’s behalf during her dispute with the landlord. The evidence shows officers sought to reinstate Ms X to her tenancy and obtained the landlord’s agreement to give Ms X the key to her flat. Ms X did not want to return to the property. But it was then for officers to decide whether the landlord’s action amounted to harassment or illegal eviction. Given the landlord’s agreement to restore access for Ms X I cannot conclude the Council’s decision not to take further action amounts to fault.
  2. Ms X considers the Council did not help her because it did not prosecute the landlord. The decision letter she received stated the Council did not consider her tenancy was protected under the Protection from Eviction Act and so the Council would not prosecute the landlord. But this letter was a response to her request that the Council prosecute the landlord. It was not the Council’s response to her request for assistance with the dispute. The Council had already resolved that by seeking her reinstatement to the flat.

The Council’s handling of the complaint and recording of information

  1. It is not for the Ombudsman to prescribe the wording of local authority responses or retrospectively judge the manner in which a council chooses to respond to a complaint.
  2. However, the Council could have directly addressed the substantive issue at an early stage by explaining that its officers incorrectly thought the property was excluded from protection under the Act. As they were addressing a past judgement it was imprudent to focus on whether the property was now excluded or non-excluded. The evidence was available showing officers had already taken action on reinstatement of Ms X to her tenancy. So the question of prosecution was not a material one.
  3. My observations notwithstanding, I do not find fault by the Council here. The evolution of a complaint response is necessarily tied to the issues raised by a complainant. Complaints sometimes start with one point and then escalate to include a myriad of issues. A council’s complaint response may not address all the issues but this is not administrative fault.
  4. I find fault with the Council’s record keeping however. Whether officers dealt with this matter formally or informally in March 2015 they should have kept records of their interaction with Ms X. No contemporaneous records were kept and the rationale for the decision to close the case was not set out in a case record. This was fault.
  5. Whether the Council breached confidentiality or the requirements of the data protection legislation is a matter for the Information Commissioner to determine and not the Ombudsman.
  6. The file note used by the Council in its conclusions on the complaint was compiled by one of the officers involved with the case. Ms X says the officer lied but I cannot resolve the veracity of the officer’s statements. This was the officer’s recollection of events. It was right for the Council to ask the officer for an account of events and then take into account what the officer said. The lack of contemporaneous file notes in March 2015 is all the more deplorable in this regard.

Injustice?

  1. I do not consider Ms X suffered significant injustice because of the identified failing to warrant a remedy or further pursuit of this matter by the Ombudsman.
  2. My conclusion here is partly based on the fact Ms X took legal action against the landlord. The Protection from Eviction Act set out the right of tenants to take action against landlords in the county courts. Ms X took that action and ceased the action through a settlement with the landlord. While the legal action was not taken against the Council I do not consider the Ombudsman should now provide a remedy for Ms X in circumstances where she already sought damages for her loss through the courts.
  3. I also do not consider the Council’s failing in terms of recordkeeping had a direct impact on events in March 2015.

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Final decision

  1. I found fault by the Council. However, I closed this complaint because I do not consider Ms X suffered significant injustice because of the fault to warrant further pursuit of the complaint by the Ombudsman.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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