Shepherds Bush Housing Association Limited (202100875)

REPORT

COMPLAINT 202100875

Shepherds Bush Housing Association Limited

28 February 2022

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 concerns:
1. The landlord’s handling of the resident’s transfer application and request for priority banding on medical grounds.
2. The landlord’s handling of an internal transfer.
3. The landlord’s response to concerns about fire safety at the property.
4. The landlord’s response to the resident’s reports of antisocial behaviour.
5. The landlord’s complaint handling.

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.

The landlord’s handling of the resident’s transfer application and request for priority banding on medical grounds.

Paragraph 39(m) of the Housing Ombudsman Scheme (the Scheme) states that “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
After carefully considering all the evidence, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the following complaint is outside of the Ombudsman’s jurisdiction:
1. The handling of the resident’s transfer application and request for priority banding on medical grounds.
On 28 July 2020 the resident submitted a housing transfer application to the landlord. He cited his reasons for moving as needing to be nearer his mother for support and care as his mental health was deteriorating due to where he was living. He suffered from PTSD, anxiety and depression. He also said he felt scared of reprisals because the youth hostel on the same street as the property housed two former prisoners he knew.
At the same time the resident submitted a transfer medical assessment form to the landlord which cited the same medical reasons as those given in his housing transfer application. Additionally, the resident stated he was on high rate benefit Personal Independence Payment (PIP) and that his family gave him his daily medication. He stated he wanted to move to a studio flat in a different borough and hoped this downsizing and his medical needs may make it quicker for him to move. Supporting documents included two letters from the resident’s Psychiatrist.
On 27 August 2020, the landlord wrote to the representative to advise the resident had been registered on the choice based letting scheme used by the landlord and that based on his medical application he had been placed in band D.
On 4 September 2020, the representative raised a formal complaint with the landlord. She did not agree with the outcome of the medical assessment or its decision not to award higher banding. On 21 December 2020, the representative asked for a further medical assessment advising of the correct number of steps from her son’s flat to the street. On 22 January 2021, the landlord advised the representative that on review no medical priority applied to the resident’s banding status.
A further medical assessment was carried out on 7 April 2021, the outcome of which was that the resident’s banding would remain the same (band D) as no priority banding on medical grounds had been awarded. The assessment said it had not been able to make a thorough assessment due to a lack of clinical information provided but would review the case with information from the patient in the form of hospital letters, and GP’s information.
In its final response dated 30 April 2021, the landlord said any further medical assessment would only take place if she provided all the medical documents requested by the medical assessor. On 3 May 2021, the representative emailed the landlord reiterating that it had not sent the correct information to its medical assessors.
This is not a complaint that this Service can investigate because this falls properly under the jurisdiction of the Local Government and Social Care Ombudsman (LGSCO). The LGSCO considers complaints about housing allocations under the Housing Act 1996 Part 6. This includes applications for re-housing that meet the reasonable preference criteria (dealt with by the local housing authority or any other body acting on its behalf, which could include a housing association), and covers:
1. Assessment of such applications, the award of points, banding or a decision that the application does not qualify for reasonable preference. This includes:
  1. where an applicant needs to move on medical, welfare grounds or due to a disability or needs to move to a particular area to avoid hardship.
  2. Applicant is occupying unsanitary/overcrowded housing, or living in unsatisfactory housing conditions.
2. Operation of choice-based lettings schemes and about the suitability of accommodation offered under those schemes.
Consequently, the landlord’s handling of the resident’s transfer application and request for priority banding on medical grounds is not within the Ombudsman’s jurisdiction under paragraph 39(m) of the Housing Ombudsman Scheme. The resident has the option of submitting his complaint to the LGSCO for its consideration.

Background and summary of events

The resident is an assured tenant. The property is a one bedroom flat. The tenancy started on 13 March 2018.
The resident has vulnerabilities which are recorded on the landlord’s system. These vulnerabilities include Bipolar disorder, Post Traumatic Stress Disorder and anxiety.
On 18 January 2021, the landlord completed an internal review in respect of the representative’s formal complaint raised on 4 September 2020 regarding its handling of the resident’s housing transfer and medical applications made in July 2020. Within its response, the landlord referred to a telephone conversation it had with the resident on 7 January 2021 stating the resident had told it that his main priority was to be moved out of the immediate area he was living in.
The landlord said that although under its policy the resident would not meet the eligibility criteria for an internal transfer, based on the resident’s desire to move from the immediate area, its suggested resolution was that it made a direct offer of a studio flat in an area where it held stock. It said this would be from within its existing stock so it would have to wait for a suitable property to become available.
It advised that if the resident chose not to accept this property, then it would not be able to make any further offers. The landlord explained that although the resident has stated he would be willing to move into a studio flat, this would not constitute as “down-sizing” (from a one-bedroom flat) because his current property was not too big for him and therefore, he was not considered to be under-occupying. However, it said that one-bedroom flats tended to be more popular so this may work in his favour.
The landlord also said that the resident had mentioned during the call that he was experiencing issues with some of his neighbours. It advised that this had been raised with its Neighbourhood Team who would investigate this. In her reply of 19 January 2021, the representative advised the landlord that the resident was cautious about making reports about his neighbours as he was afraid of repercussions. She also clarified that a one-bedroom property on the ground or first floor would be acceptable. However, advised it was likely that her son would accept a large studio flat on the ground floor if it was in the right area. She asked that the landlord contact her about any direct offers.
On 20 January 2021, the landlord provided an action plan which confirmed the areas it had housing stock in. It said its Lettings Officer would contact the representative and her son to discuss which area he wanted to move to. The landlord also said that the resident had been encouraged to report any ASB during the call and reassured that anything he reported would be treated confidentially. It said its Neighbourhood Team would get back to her surrounding this issue.
On 20 January 2021, the representative said she hoped that the landlord would offer a property nearer to the postcode where she lived, referring to two nearby areas but she said she appreciated the landlord may not have much housing stock in these areas.
On 25 January 2021, the representative raised a concern about fire safety at the property saying there was no adequate fire escape route. The representative contacted the landlord again on 10 and 12 February 2021 chasing it for a response to her request for an assessment of the fire risk in the property. She also requested that Health and Safety attend the property to consider safety aspects of the flat and advised that she wanted to make a new complaint.
On 12 February 2021, the landlord replied apologising for the delay in responding. It confirmed that it had asked its Health and Safety team about providing a report about Fire Risk Assessment and this would be provided by 19 February 2021. On 19 February 2021, the landlord advised that the Fire Risk Assessment report was not yet ready, apologised for this and said it would not be available until 23 February 2021.
On 23 February 2021, the landlord emailed the representative a report by its Fire Risk Assessor dated 4 January 2021. This made a number of recommendations in an Action Plan in order to reduce the risks of fire. The landlord also provided a document titled ‘General Fire Protection Measures’ dated 11 February 2021 which stated the means of fire escape at the property, was satisfactory. On 22 March 2021, the representative advised the landlord that she disagreed with the assessment that there was adequate means of escape from a fire at the property.
The representative was in communication with the landlord between 24 March to 1 April when she asked if the tenants of the downstairs flat had been written to about the excessive noise. She also asked who her son’s housing officer was and requested to escalate her complaint. The landlord acknowledged the complaint raised advising it would provide a response by 27 April 2021.
On 9 April 2021, the representative advised there had been continued excessive noise from the neighbouring flat including screaming and swearing until 1 am that day and their children screaming and crying. She asked why no action had been taken about this.
The landlord’s Lettings Manager called the presentative on 26 April 2021 offering the resident an internal transfer to an alternative property. The Ombudsman has been provided with the recording of this call. During this call the representative explained that the area of the property offered was still too far away from where she lived. She said it meant she would still have to travel 6 miles in order to provide care for her son.
The representative also said that she believed the property was a hostel. The landlord disagreed with this suggestion advising that the property was a self-contained studio flat. It advised this was the closest available property to the area that she lived in. The representative disputed that she had ever been asked about this and advised of suitable nearby areas. The landlord replied that it did not have stock in those areas and the representative said she would like for the property to be within a 3-to-4-mile radius of where she lived. The landlord terminated the call after she said the landlord was “sneaky” and “sly”.
The landlord followed the call up with an email to the representative. Within this it confirmed it had offered a “suitable studio flat” which was on the lower ground floor and was “in a very nice location” and as close as it could get to the desired location. The landlord reiterated that it was a studio with its own kitchen and bathroom with no shared facilities. The landlord urged the representative to view the property with her son.
The landlord referred to the locations that the representative had requested and advised it did not get properties becoming available in those areas as its housing stock was very limited there. It said it had offered her advice on approaching the relevant boroughs directly to register with them. The landlord also said it had mentioned the option of a mutual exchange however the representative had not taken this seriously. It said its offer was the one direct offer it would make as per its commitment made in its internal review response.
The representative emailed the landlord later that day advising she had visited the property and said it was indeed a hostel; there were 3 other hostels located on the same road. The room was “tiny” and was “exactly like a bedsit with a kitchenette”. Any property would need to be large enough for her son’s support network to stay over. She said the offer had been “hashed together last minute”. She said that she would accept a larger studio on the ground floor in the same area but in a different road or other areas but specified no estates.
She said that she was unhappy that the Lettings Officer and Lettings Manager were dealing with her son’s case as she had previously complained about them. The Lettings Manager had become “emotional” during the phone call when she told him the landlord was “sly” for calling her rather than emailing her instead. She said he had poor communication skills and had spoken over her. She asked that the landlord did not contact her by phone again.
After viewing the property again, the representative emailed the landlord on 27 April 2021 reiterating that the size of property was unsuitable as her son would require adaptions due to his disabilities and enough space for anyone to stay over with him from time to time. She also advised that she had seen drug users loitering around the building and was shocked to be offered drugs by these people. She contacted the police and said they would be calling her back with a crime reference number. The representative requested that the landlord withdraw its offer and make a new property offer.
In its final response dated 30 April 2021, the landlord advised that regarding the need for a carer to stay with the resident from time to time, it could only consider awarding extra rooms or space if a request had been made by a qualified occupational therapist after referral from a doctor.
Regarding its direct offer, the property was the closest it could meet in terms of type of property and location. It was 4.5 miles away from the area she resided in which was in accordance with her request for her son to live 4 to 5 miles from her area. It reiterated that the property was not a hostel but a self-contained studio flat/bedsit. Its offer constituted a suitable offer and no further direct offers would be made if this was refused although said that the resident could continue to bid on the choice-based letting scheme. It also advised that she may want to a mutual exchange to move to a property of the resident’s choice of location and type. Furthermore, it reiterated its suggestion that registering with the councils of the areas she had mentioned which were a 3-mile radius from her area as they would have properties in these locations.
Regarding her allegations about drug dealing around the property offered, it said it had received no reported cases of activity surrounding drugs from its tenants residing within the property building. It could not comment about the outside and the surrounding areas and such criminal activity should be reported to the police directly at which point it could work with them and if perpetrators reside in its properties, take appropriate enforcement action. It therefore considered the offer of the flat to be reasonable.
It advised the representative of the resident’s Housing officer, providing contact details. Regarding her complaint about its Lettings Manager, it had listened to the call of 26 April 2021 and it was satisfied its Lettings Manager had managed the call professionally. It explained he had to terminate the call as she had called him sneaky and sly. It said whilst it fully appreciated that she was concerned for her son, her comments were unacceptable and would not be tolerated.
Within its response, the landlord also advised there was currently an open ASB investigation in place. It said however that any action taken was based on proof and she and the resident had said that he did not want to give a statement, even though it had confirmed that any evidence given would be treated confidentially.
In November 2021, the representative told the Ombudsman that she was unhappy about the landlord’s handling of her request for a reciprocal transfer with another social landlord however as this issue has not exhausted the landlord’s complaint process, this Service cannot consider this complaint.

Assessment and findings

Internal transfer request

The landlord’s Allocations and Letting policy states it does not offer its own internal transfer process however says that there may be circumstances where management can exercise their discretion and use this to allocate a suitable property if available.
Its policy states this will be based on “one offer only” and if refused it will refer the resident back to the Local Authority who have the statutory duty. Criteria for ‘exceptional internal transfers’ are ‘Medical’ -residents in Bands A to C who require to move home due to a medical condition, ‘Adaption’, ‘Court Order’, ‘Decant’ and ‘Succession’. Its policy also refers to the possibility of it making “direct offers” to meet its obligations under relevant nomination agreements.
Following the resident’s submission of a housing transfer application and a call with the resident on 7 January 2021, the landlord agreed to make the resident a direct offer of a studio flat. It confirmed this in its final response dated 18 January 2021 when it explained that whilst under its policy the resident did not meet the eligibility criteria for an internal transfer, its offer was to resolve the resident’s request to move out of the immediate area. It explained the one direct offer would be for a studio flat in an area that it held stock. This approach followed by the landlord in offering the resident one direct offer as a resolution to his concerns raised about living in the property area, was reasonable.
In response to the direct offer made on 26 April 2021, the representative raised a concern about the property not being close enough to her home location. The importance of the resident being moved nearer the representative’s home area had been made clear by the resident and the representative however the new property offered was closer to the representative’s home location; it was slightly over four miles away whereas the distance from the property to the representative’s home area was approximately 6 miles away.
The representative however said that the main issues with the property offered was the size and that she felt it was a bedsit rather than a studio flat. The property type offered was a self-contained studio flat which was what had been agreed by both parties. Regarding the size, the representative said that there was not enough space for a carer to stay over and also referred to the need for adaptions due to her son’s disabilities. Whilst the representative had said to the landlord on 19 January 2021 that a large studio was preferred, she did not say this was to ensure there was enough room for someone to stay over or so adaptions could be made.
In its final response the landlord explained that it would only consider adapting a property or awarding extra rooms or space if it received a request from a qualified occupational therapist. Whilst the Ombudsman has not been provided with the landlord’s adaption policy, it is reasonable to expect that any such request is made by an occupational therapist or other medical professional. Therefore, as no such request had been made, it was not reasonable to expect that any offer of a property from the landlord took into account the need for someone to stay over or that adaptions may be needed.
The representative also complained about drug users in close proximity of the property. In its final response, the landlord advised it had not received any complaint from other tenants in the block about that issue and explained that it would work the police to establish if any reports of criminal activity outside of the block indicated the perpetrators resided in its property in which case it would take appropriate enforcement action. Whilst the representative’s concern about this issue was understandable, the landlord’s proposed action and approach to dealing with this issue as set out in landlord’s response, was reasonable in the circumstances.
Bearing in mind the landlord has limited available housing stock, it could not reasonably be expected to offer a property which met all the resident/representative’s preferences. The Ombudsman has not been provided details with the exact size of the new property however, as it was a studio flat which was located away from the immediate area of the property, this was in accordance with the resident’s and representative’s requests. It was also a lower ground flat as per the representative’s request. On this basis and because it was nearer to the representative’s home area, on balance the new property offered by the landlord was reasonable.
As the property was not accepted by the resident/representative, in accordance with its policy and what it had said in its complaint responses, the landlord was under no obligation to agree to the representative’s request to withdraw its offer or make a further direct offer to the resident.

Concerns about Fire Safety

In response to her concerns about fire and health and safety at the property, on 23 February 2021, the landlord supplied the representative with a copy of the Fire Safety report and a document titled ‘General Fire Protection Measures’. The latter document stated that the means of escape at the property was satisfactory despite the representative’s concerns. By providing the outcomes of fire safety inspections of the property to the resident, the landlord acted reasonably.
It is noted that the Fire Safety report did make some recommendations in an Action Plan in order to reduce the risk. In its final response the landlord referred to these and the estimated target dates for completion. This indicated the landlord’s intention to complete the recommendations, therefore it is appropriate to include a recommendation below for the landlord to update the resident/representative and the Ombudsman regarding its completion of the recommendations made in the Fire Safety report.

Reports of Antisocial behaviour

In relation to excessive noise/ antisocial behaviour from the tenants of the flat below the property, the resident raised a concern about this during a call with the landlord on 7 January 2021. The representative subsequently confirmed this was an issue but said that her son was cautious about providing information about this to the landlord as he was afraid of repercussions from his neighbours.
In response the landlord said it had raised the matter with its ASB team who would contact them about this issue. The landlord confirmed this in in its internal review response. Whilst this was an appropriate step by the landlord, it is unclear from the available evidence if the landlord followed up on this with either the representative or resident. It is noted that in its final response, the landlord stated that whilst there was an open ASB investigation at that time, it could not take action unless proof was provided, and the resident had said that he did not want to give a statement even though it had confirmed that any evidence given would be treated confidentially.
Therefore, this suggests that the landlord’s investigation into this issue was not progressed due to the resident not providing sufficient details/evidence surrounding any ASB issues experienced. The Ombudsman has not been provided with the landlord’s ASB policy however it is reasonable to expect a resident to assist the landlord by providing sufficient details or evidence to enable it to build a case to justify any action taken. In the circumstances however, it is appropriate to include a recommendation below for the landlord to write to the resident and representative explaining clarifying its policy and approach to tackling ASB and also suggesting an appropriate course of action in the resident’s case if this is still a problem.

Complaint handling

The landlord operates a two stage complaints process whereby it provides complaint responses within 10 working days in respect of stage one complaints and within 20 working days in respect to requests for internal reviews.
When the representative asked to raise a new stage one complaint with the landlord on 12 February 2021, the landlord did not acknowledge her complaint or issue any formal response within the timescales stated in its complaints process. It was only after the resident asked the landlord to escalate her complaint in March 2021 that the landlord confirmed it would provide a final complaint response on 27 April 2021. This is evidence of the landlord failing to follow its complaints process.
In its final response dated 30 April 2021 the landlord acknowledged that there had been a service failure on its part due to it not having registered her complaint after her communication on 10 February 2021. It also acknowledged that it should have informed the representative about how it intended to manage her further concerns raised. The landlord offered to pay the representative £25 in compensation in recognition of these failures and also offered to pay her a further £10 for not issuing its final response within the proposed timescale given of 27 April 2021. As this demonstrates that the landlord has taken steps to identify its failings and has made an offer of compensation that has put the matters right, the redress offered by the landlord resolved complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord when handling the internal transfer.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord when handling concerns raised about fire safety at the property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord when handling the resident’s reports of antisocial behaviour.
In accordance with paragraph 55b of the Housing Ombudsman Scheme, there was reasonable redress by the landlord when handling the representative’s complaints.

Reasons

Given the issues brought to the landlord’s attention by the resident and representative surrounding the resident’s concerns about their occupation of the property, its offer of an internal transfer was reasonable. Whilst the new property that it subsequently offered may not have met all of their preferences, it did meet the main requirements and bearing in mind the landlord has limited housing stock, on balance it was a reasonable offer in the circumstances. As the offer was declined by the resident/representative, any further offer would be at the discretion of the landlord.
The landlord responded to the concerns raised about fire safety by providing copies of reports of recent fire safety inspections carried out at the property which was appropriate.
The landlord opened an ASB case in response to the resident raising a concern about antisocial behaviour from the downstairs neighbour during a call with the landlord. However, the landlord told him that he would need to make a statement to progress its investigation into this issue as he had explained that he was cautious about doing so due to possible reprisals. This was a reasonable request as it would have enabled the landlord to build a case. There is no evidence of the landlord taking action in regards to reports of ASB however the landlord explained in its final response that it had not received the required supporting evidence requested.
The landlord did not acknowledge or issue a formal complaint response to the representative’s further complaints raised within a reasonable timeframe. However, on the representative then asking to escalate her complaint, the landlord confirmed that it would issue a formal final complaint response. In its final complaint response, the landlord acknowledged there had been a service failure on its part and offered reasonable compensation in recognition of this.

Recommendations

The Ombudsman recommends that the landlord:
1. Provide an update to the resident/representative and the Ombudsman regarding its completion of the recommendations made in the Fire Safety report dated 4 January 2021.
2. Write to the resident and representative clarifying its policy and approach to tackling ASB and also suggesting an appropriate course of action to address the issues being experienced by the resident if this is still a problem.
3. Pay the resident/representative the compensation offered in its final response if it has not already done so.