Thames Valley Housing Association Limited (202001339)

REPORT

COMPLAINT 202001339

Thames Valley Housing Association Limited

25 February 2021

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

1. The complaint is about:

(a) the landlord’s response to the resident’s request for a housing transfer.

(b) the landlord’s response to the resident’s report of damp / mould at the property.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 39(i) of the Housing Ombudsman Scheme, the Ombudsman considers the resident’s complaint about the landlord’s response to his report of damp / mould at the property is outside the Ombudsman’s jurisdiction. As the resident is progressing matters under the pre-action protocol for disrepair with respect to this aspect of his complaint, it is decided that this part of the complaint is outside of the Ombudsman’s jurisdiction and will not be investigated by this Service. This is because, as the resident has started using the pre-action protocol, the Ombudsman considers it quicker, fairer, more reasonable and more effective for the resident to continue to seek a remedy for the damp / mould through an alternative procedure (the pre-action housing disrepair protocol) and ultimately through the courts if appropriate.
4. For these reasons, the Ombudsman will not consider further the resident’s complaint in relation to his report of damp / mould at the property.

Background and summary of events

5. Since February 2009 the resident has lived at the property, a one bedroom, second floor flat in a block owned and managed by the landlord. It appears the resident was the sole tenant when he moved in, but now lives there with his partner, teenage daughter and young son. The property is described as one bedroom, and suitable for two people.
6. The records show the resident’s partner called the landlord on 4 April 2019 to ‘discuss options’ as the flat was too small for them.
7. It appears that during November 2019 the landlord met with the resident’s partner, and towards the end of November 2019 the resident was accepted onto the landlord’s management transfer list although his priority banding at that stage is not clear. The landlord has confirmed, however, that the resident has now been assessed and allocated a Band B2 priority banding on the grounds of overcrowding. [It being determined two extra bedrooms of up to 3 bed spaces was required.]
8. It was around this time that the landlord’s housing service manager wrote to the resident’s partner, warning her that they might have a long wait as there was a high demand for three bedroom properties. The manager explained that even when three bedroom properties became available it had an agreement with the local authority to first offer 75% of these properties to people on the local authority’s list for rehousing. The manager noted that in the resident’s areas of preference it had limited numbers of three bedroom properties and so to maximise their chances they should expand their areas of choice. The Ombudsman notes that the resident then did so, although the landlord did inform him that in one particular area it was having to offer all its three bedroom properties to the local authority.
9. In February 2020 the resident’s partner chased progress but the landlord confirmed the process could not be expedited, being dependent on a property suited to their needs becoming available. There was then a discussion between the landlord and the resident’s partner about whether they could be offered a two bedroom property instead. The housing services manager explained that its available homes team had advised it was landlord policy to allocate bedroom requirements in accordance with the national bedroom standard and so it would be unable to offer them a two rather than three bedroom property. She explained the national bedroom standard stated that for children and young people (under 21) from the same family in the household: two children under 10 of either sex can share a bedroom; two boys under 21 can share a bedroom; two girls under 21 can share a bedroom; and any remaining children should have their own bedroom.
10. On 18 June 2020 the resident formally complained to the landlord about the overcrowding in the flat. He said that despite being on the landlord’s transfer list for a year he did not think it was taking their situation seriously, that their health was suffering and that the landlord was repeatedly refusing to offer them available two bedroom properties. In particular, he questioned not having been offered a two bedroom ground floor flat in the same block, despite this being suitable on account of his age and limited mobility.  [Note: The landlord has told the Ombudsman it has no vulnerabilities registered at the property. At the time the resident was 65 years old.] The landlord’s records indicate its housing officer had spoken with the resident’s partner that same day and explained that the two bedroom property in question would not have been suitable as it would have still meant the resident and his family would have been living in overcrowded accommodation.
11. Meanwhile on 28 June 2020, having been contacted by the resident, the Ombudsman asked the landlord to reply to the resident’s complaint in accordance with its formal complaints process. [This is a process comprising two stages: a Stage 1 investigation followed by a Stage 2 review, and which it aims to provide both within 28 days of request.]
12. On 2 July 2020 the landlord provided the resident with its Stage 1 response. The landlord explained that the reason the resident had not been shortlisted for the two bedroom property was because his family had been assessed as needing a three bedroom property and so allocating a two bedroom property would still be classed as overcrowding. She further explained the current challenge being one of a lack of available three bedroom properties as most of its stock was either one or two bedrooms, with three bedroom properties rarely becoming available due to tenants’ succession rights. She said its housing officer would continue to work with the resident to find a suitable property.
13. On 9 July 2020 the resident’s partner rang the landlord to chase progress on their move, explaining that they had had a Band A listing on the landlord’s internal transfer list for over a year. It appears the landlord called her back, explained why she could not be offered a two bedroom property but also advised her to register with the local authority for rehousing. On 14 July 2020 the landlord escalated the complaint for a Stage 2 review.
14. On 22 July 2020 the landlord provided its Stage 2 response. It said that while it continued to monitor for suitable properties, it had done all it could to assist them and could only offer properties when suitable ones became available. It explained that the resident’s household composition – four occupants and their ages and genders – meant their housing requirement was for a three bedroom property. It further explained that it was not its policy to offer a smaller property even if this was what the resident would consider. In not upholding the resident’s complaint, however, the landlord suggested it might also be worthwhile for him to consider other avenues for moving home and offered to help with this.
15. It appears that in September 2020 the landlord wrote to the resident advising they were making changes to how it managed its transfer list, what those changes were and why and that residents should register again and that it could assist with this. It also suggested that the resident register with Homeswapper and if not already done so with their local authority. In early September 2020 the available homes team undertook to send the resident the necessary form to complete.
16. On 21 September 2020 the resident’s partner emailed the landlord and described the detrimental impact the housing issue was having on her daughter’s health. The housing services manager replied asking if the resident had seen the earlier letter advising of changes, to let her know if they had not received the necessary form and she would resend it.
17. On 2 October 2020 the resident called explaining he was having problems accessing the new online portal, the outcome of this is not known but in a later call on 5 November 2020 with the resident’s partner the landlord established they were registered on the portal and again explained its obligation to offer 75% of properties to the local authority.
18. Since that time the resident was offered a property in November 2020 but decided this was unsuitable on account of the stairs and as one of the children would have to sleep downstairs (which the landlord said was understandable). A three bedroom then became available but had to be offered to the local authority.

Assessment and findings

19. It should be explained at the outset that it is not for the Ombudsman to determine a resident’s eligibility for a housing transfer or to decide which property might or might not be suitable. In assessing how the landlord responded to the resident’s request for a transfer, it is for the Ombudsman to consider if the landlord has acted in accordance with all relevant policies, that it has exercised any discretion fairly and that it has responded to the resident’s concerns in a way which has been fair and reasonable in all the circumstances of the case.
20. In this case the relevant policy is the landlord’s management transfer policy (dated June 2017; updated April 2020). This policy accords with the landlord’s ‘ bedroom standard’ and its nomination agreement with local authorities. The Ombudsman has therefore considered whether in the resident’s case it acted in accordance with these.
21. The evidence indicates that once the resident notified the landlord that he considered the property no longer a suitable size for his family, it responded appropriately in providing him with the information necessary to apply to its management transfer list; which he did. It appears that although initially assessed as having a Band A priority (based on the criteria in operation at that time), the resident has now been assessed as having a Band B2 priority banding on the grounds of overcrowding. Band B2 is described in the landlord’s policy as being a medium priority banding for overcrowding, where two extra bedrooms – or 3 bed spaces – are needed, and so would appear to accord with his circumstances. If the resident considered he was due a higher priority banding on welfare grounds, he could apply to the landlord for a reassessment on provision of supporting evidence.  The Ombudsman has seen no evidence that he has done so.
22. There is also no evidence or suggestion by the resident that the landlord was failing to offer him available three bedroom properties in accordance with his priority banding. In fact there is evidence that it did offer him such a property but that for understandable reasons he declined it (paragraph 21).
23. National bedroom standard: The landlord’s determination of the resident requiring a three bedroom property accords with its bedroom standard which appears based on the government standard used to determine the number of bedrooms required to avoid under- or over-crowding of a property. The calculation of the three bedrooms required in the resident’s case is reflective of the gender and age of the resident’s two children, which determines they require two separate bedrooms.
24. Therefore the landlord’s explanation to the resident of the bedroom standard and its relevance to his transfer application was an accurate one. It was appropriate that the landlord apply its bedroom standard in calculating the number of bedrooms required for the resident and his family in order to resolve the overcrowding with which he was understandably unhappy.
25. Nomination agreement with local authority: While this calculation was an appropriate one it placed the resident in the unfortunate position of requiring a property of a size that was least likely to become available. The Ombudsman notes there is no evidence this lack of availability was due to anything other than the reasons already fully explained by the landlord (paragraph 11).
26. The landlord, as with all registered providers of social housing, has a legal obligation to assist local authorities in providing housing to priority applicants, which it does through its nomination agreement. Indeed, in its transfer procedure the landlord states that vacancies will only be made available subject to local authority nominations restrictions, and that local authorities have the right to house their residents in most of its properties, leaving the landlord a small proportion to advertise to its own residents. The landlord’s transfer policy also makes clear that properties are subject to availability and it cannot guarantee it will have housing stock available to meet the needs of a resident.
27. In this case there is no suggestion in the evidence provided that the landlord has done anything other than comply with its local authority nomination agreement before offering properties for transfer. Nevertheless, faced with the reality of a less than ideal situation for the resident, the Ombudsman considers the landlord has acted reasonably in managing his expectations from the outset as to how likely and quickly a suitable three bedroom property might become available. Equally, in order to address this lack of availability it was reasonable for the landlord to advise the resident to cast his net wider, both in terms of including additional areas of preference; which he did, and exploring other options for transfer, including applying to the local authority, with which it offered to help. (It is not known if he did so.) The Ombudsman considers those were reasonable attempts by the landlord to mitigate the anticipated waiting time and was indicative of it having taken seriously the impact of the overcrowding on the resident and his family.
28. Management transfer policy: The Ombudsman recognises that in its allocation of properties the landlord has not only to consider the resident’s needs, but also those of its other residents who might similarly be seeking three bedroom properties. And the Ombudsman appreciates that amongst these residents there might be those with even more pressing need for such a property, or equally there might be a three bedroom property better suited to the particular needs of another resident. In so far as the Ombudsman’s investigation is concerned, there is no evidence that the landlord has determined its allocations inappropriately or otherwise than in accordance with relevant policy in the resident’s case.
29. In coming to the Ombudsman, the resident has questioned why, in light of the scarcity of three bedroom properties and the overcrowding in his current property, the landlord cannot consider him suitable for a two bedroom property instead. The landlord has said that to do so would be in contravention of its policy. The landlord is ostensibly referring here to its management transfer policy.
30. This policy states – under Exclusions and Refusals – that ‘applicants may be excluded from consideration ……where (we) consider the property or location to be unsuitable for the customer or their household’ or if it is ‘larger or smaller than required for the current household size.’ It also notes in its explanation for priority bandings that ‘We do not permit over-crowding a property.’ As the Ombudsman sees it, these references can all apply to where the property in question has too few bedrooms from the number determined to be suitable for a resident. Hence, the landlord’s decision not to offer the resident a two bedroom property is a reasonable one taken in accordance with its policy.
31. As the Ombudsman sees it, however, in managing the resident’s transfer in accordance with its policy, the landlord still has discretion to act otherwise than in accordance with that policy if the rigid application of the policy is ultimately causing greater hardship to the resident than that which the policy is seeking to alleviate. In this case, overcrowding is one such hardship the policy seeks to alleviate.
32. The Ombudsman can understand why the resident would question the landlord’s decision not to offer him a two bedroom property if no three bedroom properties were available. The Ombudsman has considered this point alongside the landlord’s ability to exercise its discretion in the application of its policy. But for the following reasons it has concluded it was reasonable for the landlord to have not exercised its discretion to deviate from its policy in this instance.
33. Firstly, there is evidence that the landlord has been able to make the resident an offer of at least one three bedroom property during the time he has been on its transfer list (albeit one he did not find to be suitable for reasons other than size). That would suggest that while very difficult, the situation was not an impossible one.
34. Secondly, the resident’s family has reasonably been determined as requiring three bedrooms on account of the age and genders of the children in the family. That being the case, it is reasonable for the landlord to conclude that were it to offer a two rather than three bedroom property, that would still constitute overcrowding. And it would be reasonable to assume that as the resident’s children got older, the overcrowding issue would become exacerbated, necessitating a further move to a three bedroom property.
35. The Ombudsman notes the landlord’s policy does state that it may permit overcrowding in exceptional circumstances where residents live in an area where there is a severe shortage of accommodation suitable for a larger family. Hence its ability to exercise discretion. But where in this case the situation is likely to get worse, not better, the Ombudsman considers the landlord’s decision not to exercise discretion at that point to have been a reasonable one.
36. In summary, therefore, offering a two bedroom property would not resolve the issue in the longer term. This fact, together with the fact that a shorter term transfer would not be without cost to the landlord, leads the Ombudsman to conclude it was reasonable for the landlord not to have exercised discretion to deviate from its policy, but to act in accordance with it in its search for a three, rather than two bedroom property. 
37. Finally, the Ombudsman notes that under the landlord’s transfer procedure the resident has the right to request a review of the reasonableness of an offer or refusal by the landlord of housing under its transfer policy. This can then be considered by the landlord’s allocations panel. The Ombudsman has seen no evidence that the resident has sought a referral in this case.

Determination (decision)

38. In accordance with paragraph 54 of the Housing Ombudsman Scheme the Ombudsman finds no maladministration by the landlord in its response to the resident’s request for a housing transfer.

Reasons

39. The landlord appropriately complied with all relevant policies in helping the resident to transfer to a more suitable property in order to ease the overcrowding at his current property, and took all reasonable steps within its control to minimise the time taken to find a suitable property.

Recommendations

40. The Ombudsman recommends that until the resident is rehoused that the landlord provide him with a quarterly update of its reasons for the allocation of three bedroom properties for which the resident had considered himself to be suitable. The Ombudsman recognises that for reasons of confidentiality to third parties, this will necessarily limit the information the landlord can give, but considers that some form of explanation from the landlord will at least assure the resident that his application is not being overlooked.