Hexagon Housing Association Limited (202112592)

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REPORT

COMPLAINT 202112592

Hexagon Housing Association Limited

28 March 2024

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 the landlord’s:
1. Handling of the resident’s requests to be re-housed and for increased priority banding.
2. Response to the resident’s internal transfer request.
3. Handling of the related complaint.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42(j) 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”.

The landlord’s handling of the resident’s requests to be re-housed and for increased priority banding.

The resident raised complaints with the landlord on 11 and 17 January 2022 regarding her housing situation and her banding on the local authority’s housing register. She explained that due to her son’s disabilities he found it very difficult to manage the (3 flights of) stairs to her flat which was on the fourth floor of the property building. The resident asked the landlord to do more to get the local authority to increase her family’s banding (from band 2 high medical to Band 1 emergency priority).
In its responses dated 20 January 2022 and 9 February 2022, the landlord explained it had a nomination agreement with the local authority, who in accordance with their allocation policy, took into account the banding recommended in the medical report which was band B. It said it had contacted them about her application and they confirmed they had her housing needs as:
1. Ground floor maximum if un-lifted
2. Any floor with a lift
3. Minimal internal stairs
The landlord explained the reasons it believed the resident’s son’s health needs did not meet the requirements for the local authority band 1 priority but said if she had any further medical evidence, to provide this and it would forward this to the local authority for them to review and make any adjustments. It stated that if the resident felt she had been incorrectly banded by the local authority she would need to take this directly with them.
On 3 July 2022, resident sent the landlord evidence of her son’s higher rate mobility Disability Living Allowance (DLA) and on 6 July 2022, it acknowledged receipt of her son’s higher rate mobility DLA and told her it would send this to medical assessor for consideration. The landlord said however that even if this resulted in a higher banding, it was unlikely to make a difference to the local authority because of their criteria for band 1 being for medical emergencies as per their allocation policy.
Following further complaints received from the resident in August and November 2022 regarding her housing situation, in its responses the landlord explained it did not have any nomination rights to any of its homes in her borough as the local authority require that all of its vacant homes were given back to them to be advertised on their choice-based lettings scheme. It said however that it would arrange a multi-agency meeting and invite her son’s teacher from his school, a representative from her son’s doctors surgery and the local authority housing team. It stated that by doing this it hoped this would raise her housing situation with the local authority.
On 16 January 2023, the landlord said regarding her concern raised about being blocked from bidding on any houses, it could see that the local authority had explained to her in their email dated 17 November 2022 the reasons under their allocation policy as to why she was not eligible to bid on houses and could only bid on flats.
This service is unable to investigate this complaint because it falls 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 requests to be re-housed and for increased priority banding on medical grounds are not within the Ombudsman’s jurisdiction under paragraph 42(j)of the Housing Ombudsman Scheme. The resident has the option of submitting her complaint to the LGSCO for its consideration.

Background

The resident is an assured tenant. The property is a 2-bedroom fourth floor flat in a bock. The tenancy began on 30 April 2012.
The landlord is a housing association.
The resident lives with her disabled teenage son at the property who is a wheelchair user. The landlord told this service it had the resident son’s vulnerabilities documented and recorded on its systems.

Scope of this investigation

The resident complained to the landlord about a rodent infestation on 7 February 2022 and on 9 May 2022.
On 30 November 2022, the resident raised a complaint about the lack of water in the property. She said the water had been turned off due to an issue with the waste pipe leaking into the property below and that this was the second occasion this had happened.
As there is no evidence that the above complaints exhausted the landlord’s complaints process, this service is unable to consider the landlord’s response to these concerns as part of this investigation.
The resident told this service she believed the landlord had been negligent in its failure to re-house them due to the unsuitability of the property on account of her son’s physical disabilities. This Service acknowledges that the resident’s ongoing housing situation has caused her and her son significant distress and inconvenience. However unlike a court, we cannot establish if there has been negligence or determine liability or award damages. These matters would need to be considered by a court. However, where the Ombudsman identifies failure on the landlord’s part either to follow its policies or act reasonably and in accordance with its obligations, we can consider the resulting distress and inconvenience.

Summary of events

In July 2021, the resident submitted a transfer medical assessment citing the reasons for moving as her son finding the stairs to the flat difficult to negotiate on account of his physical disabilities. On 28 July 2021, the landlord’s independent medical assessor awarded the resident’s son’s medical needs as band B recommending a transfer to a property with ‘minimal stairs’.
On 2 September 2021, the resident complained to the landlord regarding the banding awarded by its medical assessor (band B). The resident explained that her son’s disabilities made it difficult and dangerous to reach their flat on the fourth floor of the property building as there was no lift. She listed her son’s physical disabilities.
On 28 September 2021, the landlord replied explaining that the assessment was based on the information about her son’s medical needs that she had provided that had resulted in a band B assessment. It said this banding was made where it is considered the medical circumstances had a major adverse effect on the applicant. The landlord said that since her complaint, its neighbourhood services team leader (NSTL) had visited her on 13 September 2021 who provided information on the requirements for a band A assessment. It said it had now received her updated medical letter from her GP and told the resident that her banding would be reassessed by its medical assessor.
The landlord subsequently told the resident that it had agreed to award her a discretionary band A: urgent medical for its internal banding/transfer list. The exact date of the band A award is unclear from the available evidence. However, in her complaint to the landlord dated 11 January 2022 regarding her housing situation, the resident referenced the increase to her banding indicating the landlord applied the band A award at some time prior to this.
In its responses dated 20 January 2022 and 9 February 2022, the landlord also referenced the discretionary band A it had awarded for its internal banding/transfer list but told her that the local authority did not take account of its internal banding, only the medical report from the medical assessor. The landlord said however it was concerned about her situation and that it would consider her case at its monthly band A meetings.
On 18 June 2022, the resident raised a further complaint about her son’s banding. She said she was confused as she had been repeatedly told she was on ‘band 1’ yet on the local authority’s choice based letting scheme, it had band 2.
On 6 July 2022, the landlord provided a stage 1 response. Within its response it said that it had given her discretionary band A within its internal transfer list and explained this meant that if it had a suitable flat became available, it could offer this to her, but it would not be within her borough as it was required to give all its properties in her borough, back to the local authority. It said had very few vacancies coming up at any time but it would look at her case at its monthly meetings.
On 28 August 2022, the resident complained to the landlord about her housing situation. She stated that the landlord and its assessor had been “negligent and reckless”. The resident stated that her son’s wheelchair was ready but she could not collect it due to the “…tiny dangerous and hazardous flat” it had left them in.
On 31 August 2022, the resident’s MP wrote to the landlord on her behalf regarding the unsuitability of her property and said it was failing to address the issues raised by the resident. They asked the landlord to look into the matter and to treat the matter as a complaint.
On 13 October 2022, the Occupational Therapist (OT) visited the resident to assess her son’s medical needs. In their report dated 27 October 2022, it was stated that the resident’s son relied on help from his family to negotiate the 58 stairs to and from the flat on account of his physical needs. Furthermore, this was placing him and his family at possible risk and the situation was not suitable long-term. The report also highlighted difficulties the resident’s son experienced within the home including accessing the bathroom and transferring out of the bath.
The medical report dated 16 November 2022 shows that the landlord’s independent medical assessor considered various evidence including the OT report and GP letters but found that band B medical priority should continue to apply.
On 30 November 2022, the resident contacted the landlord reiterating her complaint regarding the unsuitability of her property due to her disabled son’s needs.
The landlord’s complaint note dated 1 December 2022 indicated it called the resident at this time and that she told it that she was extremely unhappy with her housing as her son had disabilities the flat was unsuitable as it was on the fourth floor. She said the OT and medical advisor had both advised that where they lived was dangerous and hazardous. The landlord’s notes state it told the resident it would notify her Neighbourhood Officer of their conversation.
The resident’s MP wrote to the landlord on 7 December 2022 advising that they had not received a response to their earlier communication of 31 August 2022.
In its response to the resident’s MP dated 8 December 2022, the landlord stated that as it had discretionarily awarded the resident with band A transfer status, it could make her a direct offer. It explained however that as it was a partner of the borough’s choice based lettings scheme, it gave back 100% of its vacant homes to the local authority for them to provide nominations so any offer of a property would not be in her borough. It said as the resident had indicated that she would only consider properties within her borough, it had not been able to offer her alternative accommodation.
In its stage 1 complaint response dated 21 December 2022, it acknowledged the resident’s ongoing challenges caused by her living conditions and told her to contact the housing services team with any changes in respect of her household’s circumstances, medical or otherwise.
The resident emailed the landlord requesting to escalate her complaint about the unsuitability of her property due to her disabled son’s medical needs. She asked why no one had contacted her about being re-housed and said that the landlord was ignoring her. She said the OT had agreed with that the flat was too small and dangerous for her son. As the resident’s email to the landlord was undated, the exact date of her request unclear.
In its final complaint response dated 10 January 2023, the landlord reiterated that whilst it did not have any nomination rights to any of its homes in her borough, it did have 25 % nomination rights to its homes in a nearby borough but said it understood that she did not want to move far as her support network and son’s school were in the local area. However, it said that the resident had agreed to consider a move to a property on the border of the borough.

Events post the landlord’s final response

On 19 January 2023, the resident contacted this Service saying she was unhappy with the landlord’s final response as it had blamed the local authority for the failure to re-house her.
On 24 January 2023, the resident asked the landlord to escalate her complaint to stage 3 of its complaints process for its panel to review its handling of the complaint.
On 16 January 2024, the landlord’s stage 3 panel met with the resident to discuss her complaint about her request to be re-housed.
On 24 January 2024, the panel sent the resident its stage 3 complaint response. Within this response it stated that the landlord recognised that her current home did not meet her needs, and agreed that her family meets its criteria for a band A transfer. It said the landlord had already correctly determined this in its stage 2 response when it also explained it could only offer to re-house her if a suitable property that met her son’s needs became available. The response said the landlord had also explained any internal transfer offer would be in a neighbouring borough because it had no control over properties in her borough (the local authority controlled 100% of these allocations). It recommended that dialogue between her and the landlord’s Neighbourhoods team continue so that the shared objective to find her a suitable property might be realised as quickly as possible.

Assessment and findings

The landlord’s policies

The landlord’s letting policy states that in all of the local authority areas in which it operates the local authority has an allocations policy which is used to nominate housing applicants for a proportion of available homes. Applications for these homes should be made according to the local authority’s allocations policies.
Its policy states that it does not operate a waiting list and will not consider direct applications from individuals seeking rehousing unless for urgent internal transfers. It will only offer internal transfers in circumstances which meet criteria. The criteria includes ‘urgent domestic abuse’, ‘harassment/hate crime’ and ‘urgent medical’ described as where the current home is severely affecting the health or condition of the applicant, as assessed by its medical assessor.
At the time of the complaint the landlord operated a 3 stage complaints process (stage 3 was optional). Under its complaints policy, the landlord was required to acknowledge the complaint within 5 working days and tell the resident who is dealing with it within 5 working days.
The landlord was required to issue a stage 1 response within 10 working days although its policy allowed up to 20 working days if the matter was complex. At stage 2 the landlord was required to issue a stage 2 response within 20 working days or up to 40 working days if the matter was complex.
Its complaint policy stated if the resident is dissatisfied with the stage 2 response, they can escalate this to its board panel (panel) up to 30 days from receiving the stage 2 response. It stated it aimed to complete stage 3 within 28 days of receiving your request.

The landlord’s handling of the resident’s internal transfer request

The resident’s son’s physical disabilities mean it is difficult for him to access the flat as this situated on the fourth floor of the property building and there is no lift. The resident first notified the landlord of this issue in 2021 when she completed a medical application in support of her housing transfer.
The landlord’s letting policy makes clear it will only offer internal transfers to those in urgent need of a move. The criteria includes those residents deemed to have urgent medical needs by the landlord’s independent medical assessor.
When the resident’s son’s medical conditions were first assessed by the landlord’s independent medical assessor in July 2021, they awarded a band B. A few weeks later, the resident raised a complaint with the landlord regarding the banding award. In its response, the landlord explained that band B was awarded where it was deemed the medical circumstances had a major adverse effect on the applicant. This Service recognises that the medical assessor is independent, therefore the landlord was not in a position to challenge the banding awarded. Similarly, it is not the role of the Ombudsman to consider if the assessment was correct or not.
As the landlord provided information to help the resident understand the reason for the banding, and also gave her information on the requirements for a band A assessment, the landlord’s response to her complaint was reasonable. The landlord then told the resident it had passed medical evidence it received from her GP to its medical assessor for reassessment however there is no evidence to show this was assessed by its medical assessor at this time. As such this is evidence of the landlord failing to do what it told the resident it would do and is a failing.
It is clear however that the landlord subsequently informed the resident that it had awarded her a ‘discretionary’ band A. This Service recognises that by using its discretion and awarding the resident banding higher than the medical assessor’s original recommendation, it meant the landlord could consider the suitability of any of its homes that became available for the resident and her son. However, due to the landlord’s nomination agreement with the local authority for her borough, this could not lead to an internal transfer within her borough. Nonetheless, its willingness to increase her banding above the recommendation by the medical assessor indicates a commitment to finding the resident a suitable transfer internally, albeit not in her local area.
Because the increased banding was only for the purposes of its own transfer list and did not affect the banding in the medical report or the local authority banding which remained at 2, it was important however that the landlord clearly explained this situation to the resident. This was to manage her expectations and to ensure she understood only the local authority could offer a transfer to another property in her borough.
On balance, the landlord did not properly explain the benefit and limitations of the discretionary band A award in its communications to the resident during January and February 2022. This is evident from the resident’s complaint dated 18 June 2022 when she said she was confused about why the increased banding had not been updated on the choice based letting scheme. Nonetheless, in its response dated 6 July 2022, the landlord explained:
1. The discretionary band A it had awarded within its internal transfer list did not affect the local authority banding.
2. The discretionary band A may lead to it being able to offer an internal transfer should a suitable flat become available but said that because the local authority had nomination rights for all of its homes in her borough, any property offered would not be in her borough.
As this accurately reflected the resident’s situation, its response at this stage was reasonable. The landlord maintained this position in its response to the resident’s MP dated 8 December 2022, wherein it reiterated the above points and explained that because the resident had said she wanted to remain in the borough, it had been unable to offer the resident alternative accommodation.
In its final response, it repeated that it did not have any nomination rights to any of its homes in her borough, but said it had control over 25 % of allocations of its homes in a nearby borough and noted that the resident had agreed to consider a move to a property on the border with two other boroughs.
Therefore, whilst the landlord’s earlier responses to the resident did not make sufficiently clear that the band A status would only improve the possibilities for an internal transfer which did not include properties in her borough, it did then take adequate steps to explain this to the resident in its later responses.
However, this Service is mindful that in several of its responses issued in 2022, the landlord told the resident that her case would be considered at its monthly meetings. Therefore, it is reasonable to expect the landlord to have provided progress updates to the resident regarding her case, however, there is no evidence of it doing so. This indicates poor communication by the landlord and a failure to act appropriately.
Furthermore, the landlord was aware of the resident’s son’s vulnerabilities and the impact of the difficulties experienced in accessing in and out of the property on him and his family, particularly as its NSTL had carried out a home visit on 13 September 2021. Yet throughout the timeframe investigated, there is no evidence of the landlord carrying out any risk assessments or records to demonstrate it checked with the resident if she needed additional support. There is also no evidence of the landlord discussing or exploring with the resident the possibility of any adaptations to the property until such time an accessible property was found. Therefore, the landlord did not provide appropriate support to the resident.
It is clear from the landlord’s stage 3 response issued approximately a year later in January 2024 that as at that date, the landlord had not offered the resident an alternative property although it told her that if a suitable property became available in nearby boroughs, she would have the highest priority for it. This Service acknowledges that the lack of alternative accommodation offered will have caused the resident and her son significant distress and inconvenience.
However, bearing in mind the constraints on the landlord including the limited housing stock available, the resident’s son’s physical needs as assessed by the OT and the preference to reside in close proximity to her son’s college and the resident’s support network, the lack of a suitable property offered by the landlord does not establish any failing on its part.
In summary, the landlord acted reasonably by using its discretion to award the highest medical banding to the resident due to her son’s urgent medical needs in order to maximise the opportunity for an internal transfer. However, it did not always do what it told the resident it would do and at times its communication with the resident was poor. Furthermore, the landlord did not carry out any risk assessments or offer sufficient support to the resident whilst she awaited an internal transfer. Due to these failings, there was maladministration by the landlord.

Complaint handling

During the timeframe investigated from September 2021 to the stage 2 final response issues on 10 January 2023, the resident raised several complaints yet this Service has not seen any evidence of the landlord acknowledging her complaints, either within the 5 working day timescale or at all. The Ombudsman’s Complaint Code (the Code) says that within the complaint acknowledgement, landlords must set out their understanding of the complaint and the outcomes the resident is seeking. Therefore, the purpose of the landlord acknowledging the complaint is to manage the resident’s expectations from the outset and demonstrate that it has understood the complaint. The landlord’s repeated failure to acknowledgement the resident’s complaints is poor communication and evidence of the landlord not following its complaints process.
When the resident complained to the landlord via email regarding her housing situation on 28 August 2022, there is no evidence of the landlord responding to her complaint. As her 28 August 2022 communication met the Code’s definition of a complaint, its failure to log this as a complaint or provide a formal response shows a disregard by the landlord for its complaint process. This was also despite the resident’s MP urging the landlord to follow its complaints process.
It was not until the resident complained again on 30 November 2022 about the unsuitability of the property that the landlord then provided a formal response on 21 December 2022, although this failed to respond to this complaint in any detail. It is noted that the landlord had, approximately 2 weeks previously provided a detailed response to her MP on 8 December 2022 which addressed the concern raised about her housing situation. Nonetheless, it was reasonable to expect the landlord to also set out its position in its stage 1 response. The landlord did then go on to fully explain the position with the resident’s internal transfer in its final response dated 10 January 2023. Nonetheless, its failure to do so at first opportunity constitutes poor complaint handling.
The landlord’s failure to log the resident’s 28 August 2022 complaint at the appropriate time caused a delay of up to 71 working days in the resident receiving the stage 1 response on 21 December 2022.
Whilst this Service has not investigated the events after the landlord’s final response on 10 January 2023, it is noted that on 24 January 2023, the resident asked the landlord for a stage 3 review by its complaints panel. This option was available under the landlord’s complaint process in place at that time yet the stage 3 response was not issued to the resident until approximately 1 year later on 24 January 2024. This far exceeds the 28 day timeframe stated in its policy in place at that time. Based on the evidence seen by this Service, the majority of this delay was caused by the landlord as such this was further evidence of the landlord not following its complaints policy.
It is noted that since the timeframe investigated, the landlord has changed to a 2 stage complaint process. This is in accordance with the Ombudsman’s new Code released in February 2024 which requires a two stage complaints process unless the landlord believes 3 stages are necessary and sets out its reasons in the self-assessment.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord whilst handling an internal transfer request.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord whilst handling the related complaint.

Reasons

The landlord appropriately informed the resident she was eligible for an internal transfer on account of her son’s urgent medical needs for which it awarded the top banding. However, initially the landlord did not take sufficient steps to manage the resident’s expectations around the limitations of increased banding due its nomination agreement in place with the local authority. It also failed to provide sufficient support to the resident or communicate effectively.
The landlord did not acknowledge the resident’s complaints and it failed to log or respond to the resident’s complaint regarding her housing situation which led to the resident having to re-raise her complaint with the landlord. Its actions prolonged the complaints process. There was also an excessive delay in the panel issuing its stage 3 response after the resident exercised this option under its complaint process in place at that time.

Orders and recommendations

The Ombudsman orders that the landlord within 4 weeks:
1. Provides an apology to the resident for the failings identified in this review.
2. Pays the resident £550 in compensation made up of:
  1. £300 for distress, inconvenience, time and trouble whilst handling her internal transfer request.
  2. £250 for distress, inconvenience, time and trouble whilst handling the related complaint.
3. Confirms to the Ombudsman and the resident that it will provide regular updates to the resident regarding the current status and any progress with her internal transfer request.
4. Reviews its Lettings policy, specifically how it deals with vulnerabilities whilst handling internal transfer requests.
5. Provides us with a timeline for providing staff training on complaint handling to ensure complaints are handled in accordance with its complaints policy including acknowledging complaints and logging and responding to formal complaint within the appropriate timescale.
6. Provides us with evidence of compliance with the above orders.