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Bromford Housing Association Limited (202012170)

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REPORT

COMPLAINT 202012170

Bromford Housing Association Limited

25 June 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 resident has complained about the number of bedrooms in her property, insofar as the property is classified as a three bedroom property; however, the resident considers that the property should be classified as a two-bedroom property.

Background and summary of events

  1. The resident’s property was acquired by the landlord in 1994 as a new build 3-bedroom property.  Its internal correspondence confirms that it obtained planning permission for the property. The resident’s tenancy agreement states that the property is a three-bedroom house and that the maximum number of people that can live at the property is 6.
  2. In July 2019, the landlord rejected a mutual exchange application from the resident as the other party did not have a three bedroom need and therefore would under-occupy the resident’s property. The resident advised that the third bedroom was small and could not fit a single bed. At the time the landlord advised that it would carry out a formal check of the  bedroom, although there is no evidence that the landlord advised the resident of the outcome at this time.
  3. There is no evidence of communication between the parties about the matter until 25 June 2020. The resident enquired why her mutual exchange application the previous year had been rejected on the ground that the exchange partner did not have a three bedroom need when a neighbouring property had recently been allocated to an applicant with two children who could share a room. The resident asked also for the measurements of the small box room in her property which was classed as a bedroom.
  4. After inspecting on 29 July 2020, the landlord advised the resident of the following dimensions:
    1. “Small Bedroom – Wall to Wall 4.662m2 (measured from Wall to Wall)
    2. Actual Floor Space 4.031m2 (measured skirting board to skirting board)”

The resident understood this to be the equivalent on 43.4 sq. ft.

  1. On 24 August 2020, the resident raised a formal complaint stating that the landlord had not provided an answer to her calls and emails about her third bedroom.  She argued that in line with information received and the “housing act”, her property should not be considered as a three-bedroom property and that she was overcrowded. The resident also noted that the landlord had surveyed the room and confirmed that it did not meet size requirements but had done nothing.   Dealing with the case initially, the landlord enquired whether the resident could provide supporting evidence from the CAB and Shelter.
  2. The landlord also reiterated previous advice it had provided to the resident to ask the local authority Environmental Health department to review the bedroom size under the Housing Health and Safety Rating System; however, the correspondence on the case indicates that the local authority did not inspect the resident’s property or offer an opinion.
  3. After internal discussions about the resident’s complaint, on 29 September 2020 the landlord sought legal advice from a firm of solicitors. On 9 October 2020, the landlord received legal advice from the solicitors.  The solicitor advised the landlord of relevant legislation and legal possibilities but did not offer a definitive response as to whether it could lawfully charge for a three-bedroom home or should offer a rent refund.
  4. The landlord also advised the resident on 29 September 2020 that it wanted to complete a floor plan for her property and that it would be seeking legal advice. In agreeing to the visit, the resident wanted to be sent the measurements recorded at the time. On 2 October 2021, the landlord’s surveyor inspected the resident’s property to measure the rooms.  The surveyor emailed the findings internally on 5 October 2020 noting that under the space standards for bedrooms provided by the Housing Act 1985, “rooms under 50 square feet are ignored” and “in this case, the 3rd room cannot be classed as a bedroom as the size is under 4.6sq/m (50sq/f)”.  The surveyor also provides measurements for the other two bedrooms, the bathroom and the whole of the ground floor. The landlord’s internal correspondence also indicates that a site sketch was made at the visit.
  5.  On 9 October 2020, the landlord emailed the resident stating that the surveyor had advised “measurements were taken within the property of the ‘3rd bedroom’ and the floor area was approximately 3.97sq/m (42.7sq/f). The room had a bulkhead on the floor which forms the overhead space above the stairway. If the bulkhead was not taken into consideration the wall-to-wall area is 4.5sq/m (48.4sq/f)”. The landlord also stated that it would need to seek external advice before it could respond fully to the resident’s complaint. In further correspondence subsequently exchanged between the parties, the resident requested that the landlord send the “full report” of the surveyor including a floor plan that the surveyor had drafted, noting that he had measured all rooms. The resident stated that the surveyor had informed her that the third bedroom should not be considered a bedroom.
  6. On 21 October 2020, the landlord sought legal advice from another firm of solicitors and received a response on 29 October 2020. The solicitor advised that there had been case law which ruled that as long as one single bed and a bedside cabinet could fit inside a room, the room was classed as a bedroom even if the room were smaller than 50 sq. ft. The solicitor stated that “as s326 standards (on overcrowding in the Housing Act 1985) are only in relation to overcrowding, it does not actually determine what constitutes a bedroom. This is something that is up to the landlords to decide”.  The solicitor further advised that historic building regulations that were in effect at the time the resident’s property was built did not include space standards for rooms.
  7. On 14 November 2020, the landlord sent the stage 1 response. The landlord summarised the action taken since the resident first raised her concern about the size of the third bedroom in July 2019 and accepted that it had not provided a definitive response. It acknowledged the issue had been outstanding for 18 months and noted that even after the resident had submitted a complaint, it had needed to seek legal advice.  It apologised for the delay and inconvenience caused and offered £100 compensation.
  8. The landlord advised that it did not consider that the resident’s property should be classified as a two-bedroom property. It accepted that the third bedroom was under the recommended 50 sq. ft. but referred to case law where it was determined that where a single bed could be fitted in a room, then this would class the room as a bedroom. The landlord stated that its surveyor had measured the room size as 2.03m x 2.20 or 2.03m x 1.70m taking into account the door opening.  It advised the room could therefore accommodate a single bed the average size of which was 90cm x 190cm.
  9. The landlord also stated, based on the legal advice it had received, that it did not consider the resident to be statutorily overcrowded using the space standards set out in the Housing Act 1985.  The landlord advised this was because the Act took into account the availability of a living room when calculating rooms available in a property.  It confirmed the resident’s rent would remain the same.
  10. The resident sent several emails in response to the stage 1 response stating that she did not agree that her property should be classified as a three-bedroom house and asked for the complaint to be escalated to stage 2.  She referred to the space standards and she advised that when she tried to insure the property, the property was considered two-bedroomed.  The resident stated that the landlord had not made reference to the verbal advice provided by the surveyor and requested the full report for his survey which she believed the landlord was “hiding”.  The resident also disputed that she was not overcrowded stating that a bed in the small bedroom would impede fire evacuation, the other rooms could only just accommodate 1.5 people and that it was unreasonable to expect family members to sleep in the living room, as the adults and children would be on different levels which would be risky in the event of a fire.
  11. On 25 November 2020, the landlord wrote a letter to the resident reiterating the decision of 13 November 2020.  It maintained that the third bedroom could accommodate a single bed and was therefore suitable as a bedroom for a child under the age of 10. In a separate email sent that day the landlord advised that there was no formal report to be shared in response to requests from the resident to provide the full surveyor’s report, not just limited information from it.  It also apologised if the surveyor had commented to the resident on the suitability of the bedroom without being aware of the legislation.  The landlord clarified that the purpose of the surveyor’s attendance was to measure the rooms and that that information had already been provided.
  12. The resident continued to contact the landlord, including an email on 18 January 2021, asserting that the surveyor had advised that the bedroom was undersized and that her property should be re–classified. She again requested that the landlord forward his report. On 19 January 2021, the landlord reiterated that the property was a three-bedroom property, and it did not classify her as overcrowded.  The landlord advised that it had already provided the surveyor’s findings and the legal advice it received which formed the basis of its response.  The landlord advised that as the resident had not provided substantially new evidence, it would not send an additional of different response.
  13. On 12 February 2021, the Ombudsman wrote to the landlord having been contacted by the resident.  The Ombudsman noted that the resident had provided evidence suggesting that she had made a stage 2 complaint and asked the landlord to respond. On 5 March 2021, this Service wrote to the landlord asking it to respond to the resident by 12 March 2021, then wrote to the landlord again on 12 March 2021 when it did not do so.
  14. On 16 March 2021, the landlord sent a final response to the resident. It reiterated that it had relied on The Housing Act 1985 PART X, in particular s326 and caselaw (M v Secretary of State for Work & Pensions [2017] UKUT 443 (AAC)).  It confirmed it had concluded that the third bedroom should be classified as a bedroom and therefore fulfilled the resident’s eligibility. The landlord stated it would reconsider its decision if alternative caselaw was brought to its attention but that it was likely to require a decision of the court or tribunal to change the decision on the case, given the implications to the supply of housing, rents, the bedroom tax and housing benefits. 
  15. The landlord also increased the compensation awarded to the resident in respect of its complaints handling to £700 considering the guidance of this Service on compensation awards.  It noted that there had “been a considerable service failure but there may be no permanent impact on you or your family as our decision regarding the room has remained consistent throughout the complaint”. This was to be credited on the resident’s rent account taking into account her rent arrears.
  16. In further subsequent exchange of correspondence, the landlord stated that it had located information on the Shelter website which was consistent with the findings it had made on the case, and which, in fact, referenced the case that it had relied on.  The landlord noted that the Upper Tribunal had determined that “One reason why size is a factor is because it restricts the amount of furniture that can be accommodated in a room. A bedroom should be capable of containing furniture beside the bed (such as a bedside table) and furniture for clothes storage – a chest of drawers may be able to serve both functions”.   There was further correspondence between the parties in which the resident continued to dispute the landlord’s findings, stating that the case relied on concerned a Universal Credit claim and that the third room in her property was of irregular shape.  She also made further requests for the full surveyor report.

Assessment and findings

  1. It is not the role of the Ombudsman to make a definitive decision whether the resident’s property is a two- or three-bedroom property.  This can only be determined by the Tribunal or Court which has the power to make a legally binding decision on this matter. In investigating the resident’s complaint, the Ombudsman has considered the reasonableness and appropriateness of the landlord’s handling of the resident’s queries about the number of bedrooms and her subsequent formal complaint.
  2. It is not disputed that the resident first raised concerns about the classification of her property as three-bedroom in July 2019.  Although the landlord’s records indicate that it agreed to take measurements at this time, there is no evidence that it answered the resident’s concerns.  However, there is also no evidence that the resident pursued a definitive response until the following year, in June 2020.
  3. Having ascertained the size of the small bedroom the landlord sought advice from solicitors.  This was appropriate as the reclassification of the number of bedrooms would constitute a variation to the resident’s contract with the landlord, her tenancy agreement, which in turn could affect her rental payments and have wider implications for landlord.  Therefore, expert legal advice was required. Given that the first solicitor that the landlord approached was not definitive in its response, the landlord acted prudently by seeking advice from another solicitor.
  4. The landlord was entitled to rely on the advice it received.  The landlord relayed to the resident the legislation and caselaw on which it had relied.  It also confirmed its measurements of the third bedroom and advised why it thought that the bedroom could accommodate a single bed. The landlord also addressed the resident’s related concerns about overcrowding explaining that both bedrooms and living rooms would be considered available for sleeping in when deciding whether or not a property is overcrowded. The landlord thereby took steps to explain its position on the issues raised by the resident.
  5. However, the caselaw quoted by the landlord, confirmed in its email of 18 March 2021, found that as well as a single bed, a bedroom should accommodate a bedside cabinet/chest of drawers. The landlord did not make clear in its responses whether the small bedroom could accommodate such furniture and if so, where it would be placed: it simply noted that a single bed could be accommodated. It was important that it provide such clarification, in particular as the bedroom had a bulkhead and was of irregular shape. As such, the landlord’s response to the resident was not adequately thorough. 
  6. The surveyor when speaking to the resident at the inspection of 2 October 2020, had raised the resident’s expectations that the third bedroom would no longer be classified as a bedroom because its size.  The landlord took steps to clarify its position by confirming that the surveyor had been authorised to carry out a survey but that its position would ultimately be informed by the legal advice it received. It thereby sought to manage the resident’s expectations by explaining that it was not for the surveyor to decide on the bedroom classification of the property and by apologising for his comments.
  7. It is evident that the resident continued to place great importance on the surveyor’s visit as she requested on several occasions the “full” report.  It should be noted that the Information Commissioner has the authority to decide whether the resident has the right to this information.   Insofar as the main purpose of the surveyor was to measure the third bedroom, it was reasonable that the landlord provided an extract of his email containing the measurements.  Nonetheless, provision of the email in its entirety with the site sketch may have allayed the resident’s concerns that the landlord was not being sufficiently transparent and open.
  8. With regards to the landlord’s complaints handling, it noted in the stage 1 response of November 2020 that the resident’s concerns at that time had been outstanding for 18 months.  Thereafter, it required intervention by this Service for the landlord to send its final response of 16 March 2021. In the final response, the landlord increased its compensation offer to £700 taking into account the Ombudsman’s guidance on remedies.
  9. The guidance of the Ombudsman recommends “awards of £250 to £700 – remedies in the range of these amounts may be for cases where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant”.  Therefore, the landlord’s offer was at the highest end of the range. The offer of £700 was also proportionate to the circumstances of the case insofar as there were mitigating circumstances for some of the delays in the complaints handling, namely, there is no evidence that the resident actively pursued a response to her concerns about bedroom size between July 2019 and June 2020, it was reasonable that the landlord sought legal advice before responding to the resident and the landlord continued to exchange correspondence with the resident prior to sending the final complaint response of 16 March 2021.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord.

Reasons

  1. It was reasonable that the landlord sought expert legal advice.  It also took steps to explain its position on the issues raised by the resident. However, the caselaw quoted by the landlord, confirmed in its email of 18 March 2021, found that as well as single bed, a bedroom should accommodate a bedside cabinet/chest of drawers. The landlord did not make clear in its responses whether the small bedroom could accommodate such furniture and if so, where it would be placed: it simply noted that a single bed could be accommodated. It was important that it provide such clarification, in particular as the bedroom had a bulkhead and was of irregular shape. As such, the landlord’s response to the resident was not adequately thorough. 

Orders

  1. The landlord is ordered, within the next 28 days, the resident £50 compensation for the distress and inconvenience caused by the inadequate thoroughness of its responses to her, in particular, failing to take into account whether a bedside cabinet/chest of drawers could be accommodated in the third bedroom.
  2. The landlord is ordered, within the next 28 days, to write to the resident to confirm whether it considers a bedside cabinet / chest of drawers can fit in the third bedroom and therefore whether the bedroom property is still considered to be a three-bedroom property. If so, the landlord should make clear the dimensions and location of the bedside cabinet / chest of drawers. In this regard the landlord may wish to consider providing the information diagrammatically as well.