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Walsall Metropolitan Borough Council (19 003 580)

Category : Housing > Private housing

Decision : Upheld

Decision date : 23 Oct 2020

The Ombudsman's final decision:

Summary: The Ombudsman upholds Mr X’s complaint about the Council’s failure to share what it knew about two individuals it housed in a property he managed. The Council knew about the tenants’ history of anti-social behaviour. It disclosed some information but failed to disclose information that might have dissuaded Mr X from accepting the tenants. Mr X would not have accepted the tenants if he had known. Mr X experienced prolonged anti-social behaviour from the tenants and had to take legal action to evict them. The Council will apologise to Mr X and make a payment to acknowledge the injustice to him and his family. It will also review its policies about the use of private sector rented accommodation, and for tackling anti-social behaviour.

The complaint

  1. Mr X complains the Council failed to disclose information it held about two individuals, Mr D and Miss E, it housed in a property he managed. He says the Council failed to assess the suitability of the accommodation before placing the tenants. Mr X had to take action to evict the tenants due to their anti-social behaviour. He says the situation has caused him distress, reputational damage and financial loss. He would like the Council to update its policies, so they offer a duty of care to landlords, residents and tenants. He would also like the Council to pay the legal fees he incurred in evicting the tenants.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered the complaint made by Mr X and the documents he provided.
  2. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
  3. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

Housing

  1. Councils have a power to secure accommodation for applicants to prevent or relieve homelessness, regardless of their priority need status. Councils can use private rented accommodation for this.
  2. Councils must consider the suitability of any property offered to an applicant. This should take account of the needs of the applicant and their household. It should consider medical and physical needs and any social considerations which may affect the suitability of the accommodation for the applicant.
  3. Councils can provide financial assistance to private landlords in order to secure accommodation for people who are homeless or at risk of homelessness. This may include paying rent deposits and making one-off payments to prevent an eviction. They may also make Discretionary Housing Payments to help an applicant secure accommodation and meet any shortfall between the rent and the amount of Housing Benefit or Universal Credit payable to them.
  4. The Council does not have a policy which sets out how it places tenants in the private rented sector. The Council says it carries out property inspections, income and expenditure assessments and considers the suitability of the property in terms of size and the needs of the tenants.

Anti-social behaviour

  1. Councils have a duty to act to combat anti-social behaviour. The Anti-Social Behaviour, Crime and Policing Act 2014 gave councils powers to address anti-social behaviour. These include civil injunctions and community protection notices. Both the Council and the police have the power to issue community protection warnings and notices.
  2. The statutory guidance which accompanies the Act sets out some early and informal interventions which may be used to address anti-social behaviour. This includes verbal and written warnings, mediation, and acceptable behaviour contracts.
  3. The Council assigns a risk level to each case of reported anti-social behaviour. As the level of risk increases, the action taken by the Council also escalates. This may include written warnings and acceptable behaviour contracts. The Council’s online information about how it handles anti-social behaviour refers to Anti-social Behaviour Orders and Criminal Anti-social Behaviour Orders. These were repealed in the 2014 Act and replaced by civil injunctions and Criminal Behaviour Orders.

What happened

  1. This chronology highlights key actions and is not intended to be exhaustive.
  2. Mr X manages a property owned by his sister. The property is on the same road where he lives with his elderly parents and his sibling.
  3. Mr D and Miss E had been living in Council-run temporary supported accommodation. At the end of July 2018, the Council gave them notice that they had breached their occupancy licence. This was due to them causing a nuisance, committing aggravated racial harassment and making threats of violence.
  4. In August, Mr X says the Council telephoned him and asked if he would consider renting the property to Mr D and Miss E. Mr X says the Council shared some personal information with him about Miss E which suggested she was a vulnerable adult. It did not share any information about Mr D or why Mr D and Miss E had been asked to leave their previous accommodation. Mr X says the Council told him the rent would be guaranteed and it would pay any shortfall. There is no written record of this discussion.
  5. The Council told the Ombudsman it carried out an income and expenditure assessment with the tenants but did not retain a copy. It said it did not carry out a property inspection because, according to the Council, the tenants had found the property themselves. It said it had inspected the property for previous tenants and the certificates from that inspection were still valid. It arranged an introductory visit to the property so Mr X could meet the tenants.
  6. Mr X agreed to house the tenants and they moved in shortly after. Mr X says problems began immediately with Mr D and Miss E exhibiting anti-social behaviour towards their neighbours and towards Mr X and his family. He says he contacted the Council within a week asking them to remove the tenants. There is no written record of this contact.
  7. Records from the Council show the first formal report of anti-social behaviour was made by a neighbour in October. The Council liaised with the police who visited Miss E at home. The visiting police officer suggested arranging a meeting with the landlord, Mr D and Miss E. In an email to the Council, the police officer expressed concern the tenants had been rehoused to the area given they were known for causing anti-social behaviour.
  8. In November, the Council wrote to Mr X’s sister as the owner of the property. It asked her to take action to avoid further nuisance from the tenants and invited her to meet with the Council and consider evicting the tenants if their behaviour continued. The Council also wrote to Mr D and Miss E to warn them about their behaviour.
  9. Shortly afterwards, an officer spoke with Mr X and decided to send letters to other properties on the street to ask that any further reports of anti-social behaviour be made to her directly. Mr X wrote to the Council setting out his concerns about the tenants. He said he had only been paid one month’s rent to date and the tenants had harassed and racially abused his neighbours and threatened his home. He asked the Council to rehouse them as soon as possible.
  10. The Council emailed Mr X in November to advise it was looking at whether it had enough evidence to serve an injunction against the tenants. In the email, the officer stated:
    • the Council referred the tenants to Mr X and did not disclose their anti-social behaviour, criminal history or previous eviction;
    • the tenants had been known to the police for years; and
    • the tenants refused all forms of intervention relating to drug and alcohol misuse.
  11. By the end of November, the Council had received another report of anti-social behaviour involving Mr D and Miss E and was still considering serving an injunction. It considered issuing a community protection warning but concluded Mr D and Miss E were incapable of complying with any conditions set.
  12. The Council began looking for alternative housing options for Mr D and Miss E. It also referred them to a service which would offer additional support whilst they remained at Mr X’s property. The Council offered Mr D and Miss E one alternative property, but they chose not to accept it.
  13. By December, the police had been called to the property 22 times. They were considering issuing Mr D with a Criminal Behaviour Order. In January 2019, the police decided to issue a community protection warning instead. The warning was served in February but reports of anti-social behaviour by Mr D continued.
  14. Mr X advised Mr D and Miss E of his intention to evict them and gave them notice to leave the property by the end of January. However, he mistakenly served an invalid notice. He later served the correct notice, but the tenants failed to leave the property and Mr X applied to court for a possession order.
  15. Mr X complained to the Council in March. He said the tenancy agreement had expired but the tenants were refusing to leave. He described some of the anti-social behaviour he had experienced including his car being vandalised. He asked for the Council’s help to move the tenants out of the property.
  16. In its response to Mr X, the Council said it could not support the eviction process between tenants and landlords. It advised the property was suitable and affordable for the tenants. The Council said it was limited in how much information it could share about the tenants because of data protection restrictions. It said it would continue to work with the tenants and was providing them with daily support as well as looking for suitable alternative accommodation.
  17. Mr X escalated his complaint. He remained unhappy that the Council had not disclosed what it knew about the tenants’ behavioural issues. He said Mr D had threatened him numerous times and had physically assaulted a female neighbour. He also complained that he was owed money despite the Council assuring him at the outset that it would ensure all bills were paid. He asked the Council to provide written confirmation that it was aware of the volatile situation; move the tenants out urgently; compensate his legal fees; and review its procedures for placing tenants in private housing.
  18. The Council responded towards the end of May. It said as a landlord he was entitled to serve notice on the tenants and should seek legal advice. It said it would continue to provide advice and support to the tenants to find alternative accommodation, but this required the tenants to engage in the process. It said it could not pay compensation to landlords wishing to evict their tenants. The Council reiterated that it was limited in what information it could share without the written consent of the tenants. It told Mr X it was the responsibility of the landlord to ensure they have the necessary processes in place in relation to credit checks, references and consent forms to check prospective tenants’ suitability prior to letting a property.
  19. The police served a community protection notice on Mr D in June. Records from the police show between December 2018 and June 2019 there had been several further reports from neighbours about Mr D and Miss E’s behaviour.
  20. At the end of the month, Mr X advised the Council that the court had ordered Mr D and Miss E to leave the property by early July. The court awarded Mr X fixed costs of £355.
  21. Mr X reported three further incidents of Mr D intimidating him at his home to the Council. The Council advised him to report the incidents to the police as the community protection notice carried a power of arrest. However, the police advised the Council there was an administrative error with the original notice. It could not be enforced and had to be reissued.
  22. The tenants were evicted at the end of August 2019. Mr X discovered furniture in the property had been broken into pieces and placed in the loft. He also found several weapons in the property. Mr X remained concerned for his family’s safety and asked the Council to store the tenants’ remaining belongings.
  23. Mr X said there had been an error in the application to have Mr D and Miss E’s rent paid to him directly from their benefits. As Mr D and Miss E failed to pay the rent, arrears built up. He said the tenants failed to transfer the utilities and council tax into their own names. The Council paid Mr X over £4,500 to cover the deposit and unpaid rent on the property and did not charge him council tax for the period before his new tenant moved in. Mr X says he paid almost £2,000 in legal fees to evict Mr D and Miss E.

Analysis

  1. The Council says it could not share information with Mr X about Mr D and Miss E when it approached him about renting to them because of data protection restrictions. However, I am satisfied that it did disclose information to Mr X which suggested Miss E was a vulnerable adult. In my view, the Council was selective with the information it shared with Mr X and this was fault. It shared information about Miss E’s vulnerability, but not the risk she and particularly Mr D posed to others. In doing so it knowingly gave Mr X the wrong impression about the proposed tenancy. The Council says it asked Mr D and Miss E to sign a form of authorisation, allowing it to share information about them, and they refused. If the Council had told Mr X this, he could have used this information when deciding whether to rent the property to them. The Council may not ordinarily take this approach, but in this case there were foreseeable risks associated with these tenants. The Council should have used its discretion to act responsibly.
  2. The Council repeatedly told Mr X it was his responsibility to secure references from Mr D and Miss E’s previous landlord. But while landlords have a responsibility to request references to protect their position, the Council was the previous landlord. The Council, in its capacity as the previous landlord, gave Mr X some information it deemed necessary to provide a useful background about the type of tenants Mr X was about to take on. In doing so, it effectively provided a reference. To say that Mr X failed to ask the Council for a reference is to say that Mr X failed to interrogate the information the Council had provided. Mr X trusted the Council. The problem has arisen in this case because Mr X thought the Council would have told him if these tenants were a risk. The Council was at fault for being selective with the information it gave to Mr X.
  3. The Council is only required to consider the suitability of a property for the tenant, not other residents. However, the behaviour of the tenants was well known to the Council and the police later raised concerns about the suitability of the location. Given the risk of anti-social behaviour by Mr D and Miss E, the Council should have fully risk assessed the tenancy prior to supporting them to move in. It did not do so, and this was fault.
  4. I am satisfied Mr X would not have rented his property to Mr D and Miss E if he had been provided with even some of the information about their previous behaviour. He was deprived of the opportunity to make an informed decision about renting the property to these tenants. Consequently, he and his neighbours suffered the effects of the tenants’ anti-social behaviour unnecessarily for a full year.
  5. The Council was not at fault to say it could not support Mr X with evicting the tenants. However, if the Council had acted responsibly when it first contacted Mr X, he would not have rented to them and been in the position of having to evict them.
  6. The Council was aware the tenants would struggle to maintain a tenancy due to their behaviour. Despite this, the earliest record of the Council contacting a third-party provider to offer tenancy support is in November 2018, three months after the tenants moved in. In addition, this support was not offered daily as the Council suggested to Mr X. There was contact between the supported housing team and the tenants, but there is no evidence of work being undertaken to support them in maintaining their tenancy. This was fault.
  7. The Council did not provide clear reasons for its decision not to issue an injunction or community protection warning in November 2018. The only contact between the Council’s anti-social behaviour team and the tenants was an initial warning letter when it first received reports of anti-social behaviour. There was no communication between the Council and the police between late March and June 2019 despite the anti-social behaviour continuing and a community protection warning being in place. The Council’s responses to Mr X’s complaints made no reference to any action being taken to address the anti-social behaviour. The Council’s lack of decisive action and liaison with the police was fault.
  8. The Council has provided evidence to show how it now assesses applicants for private accommodation using information provided in a housing and welfare support preparation pack, personalised housing plan, risk assessment and income expenditure form. This includes information for applicants about how their data will be shared with landlords and other agencies.

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Agreed actions

  1. Within a month of the final decision, the Council will apologise to Mr X for:
      1. failing to take steps to ensure he had the opportunity to make an informed choice about entering into a contract with tenants the Council knew presented a risk;
      2. the lack of action to address the tenants’ anti-social behaviour; and
      3. trying to dismiss its failure to act responsibly by telling Mr X he should have obtained a reference.
  2. It will also:
    • Pay Mr X £2,500 to recognise the impact on him and his family of prolonged exposure to the tenants’ anti-social behaviour.
    • Pay Mr X £300 to recognise the inconvenience and frustration of having to take action to evict the tenants.
  3. The Council will also update the information available to the public about how it handles concerns about anti-social behaviour to bring it in line with the Anti-Social Behaviour, Crime and Policing Act 2014 within three months of the final decision.

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Final decision

  1. I uphold this complaint. Mr X has been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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