Clarion Housing Association Limited (202004595)

REPORT

COMPLAINT 202004595

Clarion Housing Association Limited

14 April 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

The complaint is about:

the landlord’s response to the resident’s application for adaptations (installation of a wet room) to the property.
the landlord’s response to the resident’s application to exchange her property.
the landlord’s response to the resident’s request to move by way of grant to a new tenancy.
the landlord’s response to the resident’s noise complaint regarding music from a neighbouring property.
the landlord’s complaint handling.
the landlord’s handling of the resident’s report of water ingress.
the landlord’s response to the resident’s application for permission to build a pergola/roof.
the landlord’s response to the resident’s application for a proposed extension to the boiler flue.
the resident’s reports in relation to replacement fencing.

Jurisdiction

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.
After carefully considering all the evidence, in accordance with paragraph 37 of the Housing Ombudsman Scheme, it is determined the complaints referred to as follows are outside of the Ombudsman’s jurisdiction.
Under paragraph 39 (a) of the scheme, the Ombudsman may not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.
The following complaints are outside the Ombudsman’s jurisdiction because while the resident has raised those issues in correspondence with the landlord, the resident has not exhausted the landlord’s internal complaints procedure in relation to those complaints:-
1. the landlord’s response to the resident’s application for permission to build a pergola/roof.
2. the landlord’s response to the resident’s application for a proposed extension to the boiler flue.
The following complaints are outside the Ombudsman’s jurisdiction as under paragraph 39(e), the Ombudsman may not investigate complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising:-
1. the landlord’s handling of the resident’s report of water ingress.
2. the resident’s reports in relation to replacement fencing.
In relation to the resident’s request to move by way of a grant of a new tenancy, the landlord’s role in managing the resident’s local authority’s housing register is not a function that is within the jurisdiction of the Housing Ombudsman. This is distinct from the landlord’s ability to manage its housing stock outside of the local authority housing register. In the circumstances, the landlord’s management of its own stock, where it has not been allocated to the local authority would be within the jurisdiction of the Housing Ombudsman. The resident’s complaint regarding her housing application with the local authority is outside the Housing Ombudsman’s jurisdiction and within the jurisdiction of the Local Government and Social Care Ombudsman.

Background and summary of events

Summary

The resident occupied a 4-bedroom property with her disabled 5-year-old son and her 18-year-old son, under an assured tenancy. Her occupation was pursuant to an assignment dated 4 May 2016 of a tenancy dated 2 August 2000, which assignment was likely to have been further to an exchange.
The resident has several physical health conditions, including scoliosis and degenerative spine disease, fibromyalgia, and arthritis. The resident’s adult daughter, who at the outset of the case had one child and was expecting another, had previously occupied the property with the resident. During the period the investigation covers, the resident’s daughter moved to a bungalow so that the resident was now under-occupying the property and has a 3-bed need.

Legal and policy framework

Under the tenancy agreement, the resident has a contractual right to exchange with a resident of another social landlord, subject to prior written consent of the landlord, which shall not be unreasonably withheld. The other tenant/s must also have its landlord’s written consent. The same provisions as in Section 92(3)-(6) of the Housing Act 1985 92(3)-(6) would apply to an assignment by way of exchange.
The mutual exchange policy stated that Schedule 3 of the Housing Act 1985 applied to the landlord’s grounds for refusal where the tenancy agreement states the landlord will only refuse permission on Schedule 3 grounds.
Section 92 of the Housing Act 1985 states as follows:–
1. (3) The consent required by virtue of this section shall not be withheld except on one or more of the grounds set out in Schedule 3, and if withheld otherwise than on one of those grounds shall be treated as given.
2. (4)The landlord may not rely on any of the grounds set out in Schedule 3 unless he has, within 42 days of the tenant’s application for the consent, served on the tenant a notice specifying the ground and giving particulars of it.
Grounds for refusal under Schedule 3 includes “The extent of the accommodation afforded by the dwelling-house is not reasonably suitable to the needs of the proposed assignee and his family.”
The grounds for refusing an exchange under Appendix 3 of the policy include circumstances where the property to be moved into “is not suitable to (the resident’s) needs” or where the incoming tenant would require adaptations, such adaptions would have to be approved.
The Equality Act 2010 imposes duties on landlords towards residents who are deemed to be under a disability. A disability is defined as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal daily activities. Under Section 20 of the Equality Act 2010, a landlord has a duty to make reasonable adjustments to a property. ‘Reasonable’ means that a landlord can consider whether such an adjustment would be practical and /or affordable. Adjustments can include installing a wet room but under Schedule 4 2(8) it is never reasonable for the landlord to have to take a step which would involve the removal or alteration of a physical feature (in the property).
The landlord’s adaptations policy states that the landlord will not allow any structural changes within the property, i.e. through floor lifts, extensions, or loft conversions, except in exceptional circumstances. A wet room is deemed to be a ‘major’ adaptation under the policy.
Under the landlord’s allocation policy, the landlord retains properties that it lets out outside of the local authority’s allocation scheme as long as the nomination agreement between the landlord and the local authority permits this.
Tenants who reside in the resident’s local authority would be assessed in accordance with the local authorities’ allocation scheme and not the priority bands stated in this policy.
Applicants to the landlord’s own stock may be offered properties with either a ‘Social’ or an ‘Affordable’ rent. ‘Affordable’ rents will be higher than ‘social’ rents.
The landlord could offer a resident a ‘management transfer’ where the landlord decides that given exceptional circumstances, namely where the tenant is “at risk of harm as a result of serious anti-social behaviour or domestic violence, and this is verified by the Police, and it is in the tenants or the landlord’s interest to transfer the tenant to alternative accommodation”. This is limited to areas where the relevant Local Authority does not have 100% of the landlord’s properties allocated to it.
The allocation policy also stated that the landlord could only try to assist tenants who are willing to move to an area where (the landlord) is able to allocate properties directly. In other areas where the local authority has 100% nomination rights, the landlord will refer the tenant to the local authority for assistance.
The complaints policy stated that its principles include keeping the landlord’s customer informed, managing expectations, and following policy and procedures. It did not have a timescale but stated the landlord would deal with complaints ‘efficiently’. It comprised of a 2-stage process and the second stage would require the resident to be clear on what they wish to be considered as their desired outcome and what specifically they are not accepting.

Chronology

On a date in 2018 (there is no evidence of the exact date) the resident made an application, through her occupational therapist (OT), to install a wet room in her property. The application was initially considered in June 2018, but again there is no evidence of the exact date. Following consideration of the application at the landlord’s adaptions panel, as was apparent from the records referred to below, it was agreed that the OT was due to draw up specifications and a diagram for the landlord to reconsider, but did not do so for some weeks.
On 20 August 2018, the resident had made a complaint regarding the delay to her application. The delay was due to the landlord not having received a fresh OT assessment. The landlord chased the information from the OT.
According to the landlord’s records of the 22 August 2018, the landlord stated that “this is not normally a property we would adapt and under normal circumstances we would refuse these adaptations. We are only proceeding with sketches, quotes etc as the tenant has various vulnerabilities which were discussed in my Adaptations Panel Meeting and we decided that we’d investigate whether adaptations would be possible. There is still no guarantee that the works will be going ahead.”
The OT provided a proposed sketch and recommendation of works on 24 August 2018. The OT queried whether the electric meter in the property could be moved, as it would be in the proposed wet area.
The landlord scheduled a joint visit to take place on 28 August 2018 with the OT and the landlord’s technical inspection officer (TIO) so that they could “assess feasibility together and discuss options”. Following the inspection, the landlord determined that the proposed scheme to extend the downstairs cloakroom into the kitchen was “not feasible due to the property construction not lending itself to the proposed alterations which would be costly and change the layout to this general needs property. The adaption would require extensive alteration to the structure, electrics, heating, and plumbing. A block wall would have to be demolished to accommodate the new shower tray, the consumer unit would have to be relocated involving major rewiring from the electric meter and reconnecting the existing house wiring and the waste pipe from the proposed shower would require a new underground pipe to be run under the house”. The OT and landlord in-house technical advisor confirmed that it was not feasible to adapt the property, so that the best course of action would be to re-house the resident.
The resident had proposed that the shower could be fitted in the dining room. The landlord stated this would also require extensive electrical and plumbing works and would change the layout to a general need’s property. The resident was considered for a move to an adapted property with a ground–floor wet room.
The matter was put to the adaptations panel on 12 September 2018 and the decision was confirmed at the panel to refuse the application but to support a move. On the same day, the landlord wrote to the resident with this outcome. The explanation it provided was that it was “unable to proceed on the grounds of it not being ‘reasonable or practical’ to do so.”
The landlord’s letter dated 12 September 2018 also stated that it would “support a move to a property already adapted, or that could be more easily adapted within the scope of the available Disabled Facilities Grant and would make every attempt to rehouse (the resident and her daughter) both in homes which are close together.” There is no evidence of any further developments in relation to a move until October 2019. While the landlord stated it would support a move and the Housing Ombudsman would have expected some progress to have occurred before October 2019, there is also no evidence of the cause for the lack of progress. The resident would have had to make an application to her local authority’s housing register or for an exchange in order to progress matters.
An allocations officer of the landlord wrote to the resident on the 9 October 2019 to explain that the resident’s application to the local authority area where her mother resided would have to apply to that local authority’s register. The resident would not acquire a ‘local connection’ to that local authority until her mother has been a resident there for 5 years. The landlord suggested a mutual exchange and to revisit options in her local area.
The landlord wrote to the resident on 17 October 2019 offering an appointment to discuss her rehousing requirements on 21 October 2019.
It is apparent from the records that the resident applied to be registered on the local housing register but there is no record in the information provided on what date. At some point subsequently on a date also not evidenced, but on a date in October 2019, the resident was placed in Band A of the local housing register that was managed by the landlord.
The landlord attended the resident on the phone on 6 February 2020 in relation to the resident’s application for a mutual exchange which had been refused due to potential overcrowding. The resident stated that her five–year old son could share her bedroom and that her 18–year old son would be moving out, so that a two-bedroom property would be suitable, whereas she would soon be under-occupying a three–bedroom property soon after moving in. The resident also stated that she needed an adapted bungalow for her younger son. According to the records, the officer noted that the proposed incoming household would also be under occupying.
The resident wrote to the landlord on 14 February 2020 referring to a refusal of her application to exchange and to the OT report regarding adaptations, setting out the family’s medical needs and that given another family nearby had been allowed to adapt their property, the resident should also be permitted to. The landlord replied the same day and stated that it would treat this email as a formal complaint.
On 17 March 2020, the landlord wrote to the resident with its first state response to the resident’s complaint 14 February 2020 which it summarised as follows–
1. Mutual exchange
2. Occupational health visit
3. Bedroom tax
4. Repairs
The landlord stated that the resident’s daughter’s application for mutual exchange, as a party of the proposed three-way exchange, was suspended because her daughter did not re-decorate her bungalow. The landlord stated that this was for her daughter to make a complaint. The landlord however reinstated the resident’s daughter’s application. The landlord also explained that the resident’s own application had been refused because the daughter’s property was two bedroom property, and the resident had a three-bedroom need. She is registered for ‘auto–bids’. The landlord advised the resident to be flexible which the resident says she was, subject to being close to her daughter.
In relation to the proposed adaptations, the landlord referred the resident to its letter 12 September 2018. It explained that the works were not feasible due to the property construction not lending itself to the proposed alterations which would be costly and change the layout of the property. The landlord referred the resident to the local authority regarding the ‘bedroom tax’ or, alternatively, assistance.
There are no records in relation to the period 10 March 2020 to 15 July 2020 when the landlord wrote to the resident to say if she wished to escalate the complaint, she would need to be clear on what she does and does not accept, and what was the desired outcome.
There is no record of the resident’s response, however, on 10 August 2020, the landlord wrote with its final response to the resident’s complaint. It set out that:-
1. The OT requirement was for a full wet room (not a simple shower tray) and that the adaptation required substantial changes to the structure of the property which were just not feasible in her current home. The landlord cited its adaptations policy, which stated that the landlord “will not allow any structural changes within the property, i.e. through floor lifts, extensions or loft conversions, except in exceptional circumstances.”
2. The landlord noted the length of time since that decision of 12 September 2018. As no move had progressed, the landlord stated that it was appropriate to review its approach. It suggested that the OT assessment was revisited and “this could include looking at alternative properties that may lend themselves more appropriate to any recommended adaptations.”
3. The complaint was partially upheld as, in the landlord’s view, while the original decision was correct, given the length of time that had elapsed, it believed it was now appropriate to review its approach. It apologised it had not made this clear to the resident and promised it would review the application on receipt of an updated occupational health assessment.
4. The landlord was unable to comment on the neighbour’s improvements but had noted the information.
5. The resident was on the Home-Link register in her local authority area. The banding was still Band A ‘Urgent multiple needs’, the highest banding that could be allocated. She was on an automated bidding system, so would automatically be considered for anything that came up that was suitable. “Unfortunately, we have very few properties that meet your family’s requirements and therefore, you have not been successful in finding alternative accommodation so far. The landlord would encourage you to be as flexible as possible with your housing options, to improve your chance of finding alternative accommodation. Currently we have very few 3 bedroomed properties in desired area and surrounding areas. The letter proposed other local authorities, but that would be subject to their allocations policy. This aspect of the complaint was not upheld.”
6. In relation to the noise complaint in relation to a neighbour of the resident’s, the landlord was not the relevant neighbour’s landlord but referred the resident to the local authority. It also invited the resident to contact it back should it be a resident of the landlord after all.
On 27 August 2020, the resident replied that she does not need a fresh assessment as her health conditions were self-explanatory.
The landlord has confirmed that it has 100% nomination agreements with the resident’s local authority and in the neighbouring counties.

Assessment and findings

The landlord’s response to the resident’s application for adaptations (installation of a wet room) to the property.

While there is no evidence that the landlord specifically considered whether the resident suffered under a disability under the Equality Act 2010, it is evidenced that the landlord considered the adaptation beyond its policy, given it resubmitted the application for adaptations to the panel because of the resident’s vulnerabilities. It was a reasonable exercise of the landlord’s discretion that it sought further detailed plans for the adaptations by the resident’s OT in order to explore the application further, it chased the OT for the proposal, it sent its surveyor to attend the property with the OT in order to fully investigate the matter. This additional layer of scrutiny evidenced that the landlord fully considered the matter.
The key question the landlord would be required to address under the Equality Act 2010 was whether to install a wet room was a reasonable adjustment. Schedule 4 (8) of the Equality Act 2010 excludes structural changes from ‘reasonable adjustments’, however the landlord’s policy provided that it would consider structural changes under exceptional circumstances. The policy was considered in the landlord’s letter 10 August 2020. Furthermore, the adaptation was described as “not feasible”, and “the structural restrictions prevented (the landlord) from doing the work” and therefore it is reasonable to conclude that the adaptation was simply not possible and no circumstances, however exceptional, could have surmounted the difficulties.
The landlord did not explain in detail in its letter 12 September 2018 the reasons for its refusal to install the wet room or why her circumstances did not reach the high bar of being exceptional, but it did explain more fully in its complaint response of the 17 March 2020.
In its letter 10 August 2020, the landlord acknowledged that it should have communicated that the decision to refuse the adaptations application could be revisited. It was reasonable that the landlord offered to consider a review of its decision, given that the resident had been unable to move to a new property. While it is difficult to envisage how the landlord’s decision could alter, given its reasons for refusal, it was reasonable for it to give the matter re-consideration.
It was also reasonable and appropriate for the landlord to require an updated OT assessment, including of the resident’s son’s needs. An up-to-date OT assessment would be crucial to a review of the adaptations application, as well as her housing application referred to below. A review based on assumptions, as the resident suggested, would both be impractical and unsatisfactory. The resident declined to seek an OT assessment. Subsequently, the resident was unable to obtain an OT assessment due to the restrictions under the Covid-19 pandemic and the subsequent backlog due to those restrictions. In the circumstances, the landlord was prevented from re-considering the resident’s needs, and progressing a review.
While the resident has provided a consultant’s letter to the landlord, which this service has not seen. It is not clear to what extent that would have assisted and would have been limited to information about the resident’s son, without the benefit of an OT assessment.
The landlord’s decision not to comment on a neighbour’s improvements was appropriate because the resident is not entitled to such information under data protection regulations (GDPR).

The landlord’s response to the resident’s application to exchange her property.

The landlord’s exchange policy set out three grounds for refusal: under the Housing Act 1985 (HA 1985), the Localism Act 2011 (LA 2011) and its own policy. The policy stated that the HA1985 would apply where the tenancy agreement stated the landlord would only refuse permission under the grounds in Schedule 3. The tenancy agreement stated that the same provisions as in HA1985 92(3)-(6) should apply to an assignment by way of exchange. Section 92(3) stated that Schedule 3 will apply. Furthermore, the policy stated that the grounds in its own policy applied to “Assured tenants where the tenancy agreement contains the right to mutual exchange but there is no explicit reference to Schedule 3 of the Housing Act 1985 “. There is explicit reference to Schedule 3. In the circumstances, it is reasonable to conclude that Schedule 3 of HA 1985 would apply.
In any event, Schedule 3 of HA 1985, Schedule14 of LA 2011 and the policy are very similar, namely the grounds for refusal include:- “The extent of the accommodation afforded by the dwelling-house is not reasonably suitable to the needs of the proposed assignee and his family” and “is not suitable to (the resident’s) needs” or where the incoming tenant would require adaptations, such adaptions would have to be approved.
The landlord is therefore entitled, if not required, to refuse a request to exchange on the ground that the property is not suitable for the resident. The property not being suitable would include whether the resident would be over-occupying: The exchange policy includes this as a criterion. The assessment of 3-bedroom need is in accordance with the standard set out in Section 325 of the Housing Act 1985 and is adopted by housing providers and allocations schemes of local authorities. While the resident’s view is the overcrowding would be temporary and her younger son does not need his own bedroom, the landlord is entitled to, if not obliged to, given the expected changes to household size might not materialise, base its view of suitability and need on the current number of occupiers.
It was reasonable of the landlord not to comment on the refusal based on the resident’s not painting her property walls as that concerned a third party’s application. It was for the resident‘s daughter to raise the issue, however it was a reasonable exercise of the landlord’s discretion as a response to the resident’s complaint that it lifted the suspension of her daughter’s application.

The landlord’s response to the resident’s request to move by way of a new tenancy

The landlord was not in a position to offer the resident a direct let due to the landlord having a 100% nomination agreement in the local authority districts the resident has applied for. A 100% nomination agreement signifies that 100% of its properties are within the control of the local authority, and so the only means of access to other properties in the areas of the resident’s choice is by making an application to the relevant local authority’s housing register. As a consequence, not only would the resident’s options be subject to availability of suitable properties on the housing register, but the resident would be subject to that local authority’s allocation policy. Such policies are likely to include requirements on the resident having the necessary ‘local connection’, within the meaning of the Housing Act 1996 and as set by the local authority’s allocation policy. For example, the resident was unable to bid in a particular local authority, as set out in paragraph 36 above, given that 100% of the landlord’s properties were offered to the local authority, and the resident had not acquired the necessary local connection. However, each allocation policy will vary but it is for the resident to make the necessary enquiries to the local authority she may wish to move to.
Moreover, the resident did not qualify for a management transfer as that is limited to circumstances where there is serious anti-social behaviour and domestic violence, as set out in the landlord’s allocation policy.
While the resident expressed concerns she was excluded from properties with ‘affordable’ rather than ‘social’ rents, these were only available by way of a transfer by a direct let which was not available to the resident in the areas of the resident’s choice.
It is understandable that the resident may find the distinction between the roles of the landlord as housing provider and manager of the local authority’s housing register confusing. However, the landlord can only support the resident in her application to move, but it is the local authority who holds the stock. The resident’s application to the local authority housing register is not a matter for this investigation as it is outside the Housing Ombudsman jurisdiction as explained above.
It is reasonable that the landlord assisted and continues to assist the resident with her application to move given its promises to do so made in its correspondence of 12 September 2018 and 10 August 2020. In order to assist the resident, it is necessary the resident cooperate with the landlord to provide all the necessary information. The landlord would need to understand the resident’s housing needs. In the circumstances, it was reasonable for the landlord to require the resident to seek an OT assessment. It would be necessary for the landlord to have up–to–date information, including the current make–up of the household, the resident’s needs, and her son’s needs. As set out above, the resident initially declined to seek an OT assessment. This would have limited the opportunities of the landlord to consider the resident’s housing options.
While the events post–completion of the landlord’s internal complaints procedure is outside the remit of this report, it is noted that landlord has since sought to encourage the resident to undertake an OT assessment, and the resident has since agreed to do so. It is understood that because of the difficulties of arranging an OT assessment due to the Covid–19 pandemic, the landlord has offered to arrange and fund this itself. This is a very reasonable and commendable exercise of its discretion, demonstrating the landlord’s commitment to achieving a resolution in this case.

The landlord’s response to the resident’s noise complaint regarding music from a neighbouring property

The neighbour in relation to whom the resident’s report was made was not a resident of the landlord and therefore the landlord’s explanation that it is unable to take any steps in this regard is correct, and the referral to the local authority was reasonable. It could have considered whether it could liaise with another landlord if the neighbour’s landlord was a social landlord.

The landlord’s complaint handing

The landlord responded to the resident’s complaint and escalation of the complaint within reasonable timescales. It acknowledged its omission not to have communicated the fact the resident was entitled to a review of its decision to refuse the application for adaptations. The resident suffered little of no prejudice by that omission given the landlord utilised the complaint procedure to offer a review and given the resident declined to engage in a review at that time by not seeking an OT assessment.

Determinations (decision)

In accordance with paragraph 54 of the Scheme there was:
1. No maladministration in relation to the landlord’s response to an application for adaptations (installation of a wet room) to the property.
2. No maladministration in relation to the landlord’s response to the resident’s application to exchange her property.
3. No maladministration in relation to the landlord’s response to the resident’s request to move.
4. No maladministration in relation to the landlord’s response to the resident’s report of noise regarding music from neighbouring property.
5. No maladministration in relation to the landlord’s complaint handling.

Reasons

The reason for refusing the resident’s application for adaptations was justified by its lack of viability, and is therefore reasonable.
The principal reason for the refusal of the application to exchange was that the resident would be over–occupying the new property. That grounds for refusal decision is in compliance with the landlord’s obligations as a social landlord, statutory guidelines and with its policies. It was reasonable of the landlord to support a move as an alternative.
It was not within the power of the landlord to offer a direct let or a management transfer in the areas of the resident’s choice. No suitable properties had become available, which is outside the landlord’s control. The landlord’s role in managing the local authority register is outside the Housing Ombudsman’s jurisdiction. It is noted that the landlord is however seeking to assist the resident in order to optimise her housing application.
It was reasonable for the landlord to conclude there was little it could do in relation to the noise complaint given that the neighbour was not a resident of the landlord and while the landlord could have made further enquiries, the landlord’s referral the resident to the local authority was reasonable.
The landlord responded to the resident’s complaint and escalation of the complaint within reasonable timescales. It acknowledged its omission not to have communicated that the resident was entitled to a review of its decision in relation to the application for adaptations. It utilised its complaints procedure to offer a review and of the resident’s housing application.