Hammersmith and Fulham Council (202203481)

REPORT

COMPLAINT 202203481

Hammersmith and Fulham Council

8 September 2023

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 the landlord’s response to the resident’s request it should change the bedroom classification of her property.

Background

2. The resident is an assured tenant of the landlord. She lives at the property with her son. Her tenancy agreement states that the property is a two-bedroom house.
3. On 28 March 2022, a local councillor raised an enquiry on behalf of the resident, regarding her dissatisfaction with the size of the second bedroom within her property, and her request to be transferred to an alternative property. The landlord responded to the councillor enquiry, highlighting that the resident viewed and accepted the property in March 2021, and had been living in the property since 7 June 2021. The landlord explained that while it was satisfied the second bedroom within the resident’s property fell within the UK bedroom standard requirement, it would arrange for a surveyor to attend the resident’s property to measure the second bedroom again. It also acknowledged that while it did have larger two-bedroom properties within its social housing stock, due to the high demand of two-bedroom properties within the borough, these were generally allocated to families with three to four household members, as siblings may be expected to share a bedroom (depending on their age and gender). The landlord’s response also advised that the resident was unlikely to meet the threshold for a housing transfer as it considered her adequately housed. It suggested that the resident explore an alternative housing route, such as a mutual exchange with another resident.
4. On 31 March 2022, the landlord instructed a surveyor to visit the resident’s property to measure the second bedroom. The surveyor confirmed that the second bedroom measured at 52.42 square feet.
5. Between 12 May 2022 and 13 November 2022, the resident raised a series of formal complaints with the landlord. She stated that her second bedroom measured at 50.88 square feet and should not be classed as a bedroom, in line with criteria set out in the Housing Act 1985, which outlined bedrooms that are 50 square feet or more, but less than 70 square feet, are suitable for a child under the age of ten. She advised her son was currently 19 years old, and that she had taken the property when offered, as she had no other alternative at the time. She also explained that she was aware of the landlord undertaking extension works to similar two-bedroom properties along her street, to create an additional adequately sized bedroom at the front of the property, disregarding the smallest room as a bedroom. She questioned why the landlord had not made the same adjustments to her property.
6. On 14 December 2022, the landlord sent its final complaint response to the resident. It explained that it had previously responded to several councillor enquiries and complaints relating to the same matter. It reiterated that the resident had resided in the property for a significant amount of time, that she viewed and accepted the property as it was, and that the property was correctly classified as a two-bedroom house. The landlord explained that the only housing transfer options available to her would be by medical approval, based on health reasons or by mutual exchange with another resident.
7. The resident contacted this Service on 10 January 2023 to ask for her complaint to be investigated. She told this Service that she believed the landlord’s measurements of her property to be incorrect, as the surveyor did not measure all rooms, and it included the door area in the measurements which was not useful space.

Scope of investigation

8. There is an element to this complaint which is outside the scope of this investigation. This concerns the resident’s claim that when her relationship with her ex-husband broke down, the landlord advised that if the household agreed to downsize from their four-bedroom property, the resident and her son would be rehoused separately and before her ex-husband. The resident has stated that the landlord did not rehouse her and her son before her ex-husband, causing her to accrue rent arrears from paying “bedroom tax” on a four-bedroom property. Consequently, this meant the landlord left her with no option but to accept her current property. The Ombudsman cannot consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable time of usually six months of the matters arising. This is because the landlord needs to be given the opportunity to consider the issues raised while they are still ‘live,’ and while the evidence is available to reach an informed conclusion on the events that occurred. As the resident moved into the property on 7 June 2021, and did not raise these concerns to the landlord at the time, this investigation will focus on events from 31 March 2022 onwards when the resident first complained to the landlord about the size of the second bedroom.
9. Additionally, it is outside the role of the Ombudsman to make a definitive decision whether the resident’s property should be classed as a two-bedroom property or order the landlord to extend or re-designate the property. This is because the classification of the property is a legal matter which is outside the Ombudsman’s remit to determine. This can only be determined by the Tribunal or Court which has the power to make a legally binding decision on this matter. If the resident wishes to pursue this matter further, she may wish to seek independent legal advice. In investigating the resident’s complaint, the Ombudsman has considered the reasonableness and appropriateness of the landlord’s response to the resident’s request it should change the bedroom classification of her property, and her subsequent formal complaints.

Assessment and findings

The landlord’s response to the resident’s request it should change the bedroom classification of her property.

Policies and procedures

10. The resident’s occupancy agreement states that the property is a two-bedroom house, which can accommodate up to four people.
11. This Service is not aware of any legal guidance or regulations that relate specifically to room size requirements for a property which is let on a single tenancy agreement and is formed of a single household. The resident’s property does not fall within the regulations of a House in Multiple Occupation which would require a bedroom to be a minimum of 6.51 square meters or 70 square feet. This requirement only applies to properties which are occupied by multiple adults who are not related to each other.
12. The resident expressed her dissatisfaction with the size of the second bedroom within her property, and the landlord took appropriate steps to arrange for a surveyor to measure the room seven days later. While there is a record of the surveyor relaying its findings to the landlord on the same day it attended, there is no record to demonstrate that the landlord communicated the outcome of its findings to the resident, until almost seven weeks later. The Ombudsman notes that there are gaps in the landlord’s records because correspondence we have reviewed suggests communication had taken place between the landlord and resident during that period. However, in the absence of clear records, the Ombudsman cannot conclude with reasonable certainty that the landlord provided an update of its findings to the resident adequately or in a timely manner. This is inappropriate and failure by the landlord in its record keeping. Keeping an accurate audit trail is an important part of a landlord’s service delivery, and the landlord should have systems in place to maintain accurate records of all correspondence, so that it can satisfy itself, the resident (and ultimately the Ombudsman if necessary), that it took all reasonable steps when handling the resident’s concerns. It will therefore be recommended that the landlord reviews its record keeping practices to ensure that a clear and accessible record is kept of all correspondence. This will help to ensure that it is able to fully understand the scope of a case, and quickly review, access, and provide relevant information when required.
13. The Ombudsman notes that the landlord sent eight complaint responses to the resident between 20 May 2022 and 14 December 2022, which repeatedly explained that it was satisfied the second bedroom within her property was compliant, that she had been occupying the property for 11 months, and that if she wished to move, the only option would be via a mutual exchange with another resident. While the Ombudsman appreciates the landlord’s attempts to address the resident’s concerns, the Ombudsman is not satisfied that the landlord went far enough to explain the reasons for its decision. This created unnecessary and repetitive correspondence between both parties for a period of seven months. This was inappropriate and constitutes a service shortcoming by the landlord. To further explain, the resident claimed that the landlord’s bedroom classification of her property was in breach of the Housing Act 1985, however, none of the responses provided by the landlord addressed this assertion. Section 326 of the Housing Act 1985 relates specifically to statutory overcrowding, rather than the room size requirements of a property. It outlines that both bedrooms and living rooms are considered as rooms that can be slept in, and that a home is overcrowded if one of the three scenarios below apply:
    1. two people have to sleep in the same room if they are not a couple or of a different sex.
    2. the property has less rooms than needed for the household.
    3. the rooms are too small even if you have enough rooms.
14. Although under scenario ‘c’ the Act says that a room measuring between 50-69 square feet should only accommodate a person under the age of ten, the resident has a living room which would be considered as another room that can be slept in. This means the resident’s circumstances in relation to the Act did not support a case for overcrowding, nor was it relevant to the landlord’s bedroom classification of her property. The landlord should have clearly explained this within its responses to the resident, to clarify the resident’s interpretation of the Act, and to avoid ambiguity at an early stage.
15. Additionally, the resident questioned why the landlord had not considered extending her property to create a larger bedroom at the front of the property as it had done for others along her street. However, the Ombudsman has seen no evidence of the landlord responding to the resident’s question. In the first instance, the landlord should have checked and confirmed whether it owned the properties the resident had referred to. If the landlord did own the houses in question, it may not have been able to confirm the exact reasons why they had been extended due to the need to keep tenants’ personal information confidential. However, the landlord could have shared general information about the reasons why a property may be adapted, which include statutory overcrowding and medical reasons with recommendations from occupational therapy, and that each household’s circumstances are individual and considered on their own merits. This would have demonstrated that the landlord had listened and reasonably considered the resident’s concerns, while explaining the reasons for its decision on her case.
16. Clear and effective communication on a landlord’s part is an essential element of all aspects of its overall service delivery. Additionally, an effective and efficient complaints process ensures that all issues are addressed in full, to prevent a situation from becoming worse. If landlord responses to resident queries are not thorough and informed, it can take a landlord significant resource and time to conclude, as demonstrated in this case.
17. In light of the above points, the Ombudsman has concluded that there was service failure by the landlord in respect of its response to the resident’s request it should change the bedroom classification of her property. The landlord failed to comprehensively explain its obligations and reasons for its decision and did not demonstrate that it investigated the resident’s concerns in a timely manner. As such, the landlord should review all the resident’s correspondence relating to the bedroom classification of her property from March 2022. It should write to her explaining in detail how it has considered the points she has raised and whether this would have an affect on its final decision on her case. It should also apologise for the length of time taken to conclude her concerns in full, and it should highlight that this is its final response on the matter. This response should be uploaded on to the landlord’s central complaints system so that it is fully accessible to those who are responsible for managing and responding to complaints, to prevent any further duplication of work.
18. The Ombudsman’s Remedies Guidance, which is published on our website, sets out our Service’s approach when seeking to resolve a dispute. Where there has been a determination of service failure, the guidance states that landlords should offer residents a financial remedy of £50 to £100 in cases where we identify a single or limited number of minor failings in the landlord’s service delivery. While the landlord’s overall response to the resident’s concerns lacked detail, in the Ombudsman’s opinion, this is not a factor that would have changed the overall outcome of the landlord’s decision on the resident’s case. However, the Ombudsman will order the landlord to pay the resident £100 compensation in recognition of the time and trouble caused to the resident because of its poor responses to her concerns.

Determination

19. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s request it should change the bedroom classification of her property.

Orders and recommendations

Orders

20. Within four weeks of the date of this determination the landlord should:

a.     pay the resident £100 compensation in recognition of the time and trouble caused because of its poor responses to her concerns.

b.     review all the resident’s correspondence relating to the bedroom classification of her property from March 2022. It should write to her explaining in detail how it has considered the points she has raised and whether this would have an affect on its final decision on her case. It should also apologise for the length of time taken to conclude her concerns in full, and it should highlight that this is its final response on the matter. This response should be uploaded on to the landlord’s central complaints system so that it is fully accessible to those who are responsible for managing and responding to complaints, to prevent any further duplication of work.

21. The landlord should provide evidence of the actions it has taken in response to the Ombudsman.

Recommendations

22. The landlord should review its record keeping practices to ensure that a clear and accessible record is kept of all correspondence. This will help to ensure that it is able to fully understand the scope of a case, and quickly review, access, and provide relevant information when required.