Housing Solutions (202108252)

REPORT

COMPLAINT 202108252

Housing Solutions

1 November 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint refers to:
1. The landlord’s handling of the resident’s reports that one of the bedrooms in her property was too small to be classed as a bedroom.
2. The level of rent charged by the landlord to the resident based on the number of bedrooms in the property.
3. The resident’s concerns about the behaviour of a member of the landlord’s staff.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

The level of rent charged by the landlord to the resident based on the number of bedrooms in the property.

Paragraph 39(g) of the Scheme states:
1. The Ombudsman will not consider complaints which, in the Ombudsman’s opinion concern the level of rent or service charge or the amount of the rent or service charge increase.
The resident has asked the landlord to reduce the level of rent she pays to reflect that the property is a two-bedroom house. She has also asked for this to be backdated to the date she raised the complaint and for a refund. Complaints that relate to the level, reasonableness, or liability to pay rent or service charges are within the jurisdiction of the First-Tier Tribunal (Property Chamber) and the resident would be advised to seek free and independent legal advice from Shelter if she wishes to pursue the matter further. However, we can look at the landlord’s communication with the resident about the substantive issue and whether it investigated and responded to her concerns appropriately, in line with its policies and procedures.

Background and summary of events

The resident is a tenant of the landlord and tenancy agreement states that the property is a three-bedroom house.
The resident called the landlord on 1 June 2020 to discuss the size of the third bedroom in her property. She advised that the bedroom was smaller than 50 square feet and should not be legally classed as a bedroom. She expressed concern regarding fire safety and noted that if there was a fire, the emergency services would not be able to enter the room. She also noted that the bedroom door did not close fully. The landlord’s records show that the resident called again on 5 June 2020 as she had not received a call back. The records suggest that the resident was called that day.
The resident emailed the landlord on 7 June 2020 and confirmed that the smallest bedroom measured at 49.29 square feet. She understood that a bedroom must be 50 square feet to be classed as a bedroom for children under ten. She added that there was currently a single bed in the room and the door did not open fully. She advised that she currently paid an amount of rent that she considered too high for the rooms in her property and asked the landlord to investigate this matter.
The landlord responded on 9 June 2020 and explained that the plans for the property were signed off by the local authority as having three bedrooms. The resident had been nominated for the property as she was eligible for a three-bedroom property due to her family size. It confirmed that it did not decide which property would be allocated when nominated by the local authority. It said that it had arranged for an inspection to take place to see if it was possible to change the direction of the door to the bedroom so that it could be closed.
The landlord’s records show that a contractor attended the property on 30 June 2020 and advised that they would be unable to change the direction of the door opening. The resident said that she had spoken to the local authority, who said that it would be the landlord’s responsibility to ensure that the property met government regulations in terms of size. She was also under the impression that it would be the landlord’s responsibility to reassess the property size and rent accordingly.
The resident asked for a formal complaint to be raised on 6 July 2020 for the following reasons:
1. She reiterated her concern that her third bedroom measured under 50 square feet and should not be classed as a bedroom in line with criteria set out in the Housing Act 1985 Section 326, which stated that rooms with 50 square feet or more would be suitable for a child under ten. She advised that her three-year-old child currently used the bedroom and that there was no space for a wardrobe or drawers. She added that her child had no floor-space to play and was quickly outgrowing the room.
2. She said that she had taken the property when offered as she had no other alternative but felt that she had been taken for granted due to her needing a property in an emergency. She explained that she had explored her options with regard to moving properties through exchange but she would not be able to pursue this as the third bedroom was too small and her level of rent was almost double that of other, larger, three-bedroom properties nearby. She asked the landlord to reclassify the property as a two-bedroom property as soon as possible.
The resident emailed the landlord on 9 July 2020 and asked for an urgent call-back as she had not received an acknowledgement to her complaint email. She sent a follow-up email the following day as she had not received a response.
The landlord issued its stage one complaint response to the resident on 13 July 2020 and explained the following:
1. It apologised that her complaint had not been acknowledged within two working days in line with its policy. It noted that this had been initially overlooked and hoped that its expedited response made up for the delay.
2. It had checked the planning permission for the development and confirmed that the local authority had approved the property as a three-bedroom house. The room designed by the developer was 51.45 square feet and it had purchased the property on that basis. It noted that it had not been involved in the design process for the property. It said it was sorry to hear that the local authority was not engaging with the resident on this issue as the local authority should have been consulted on the plans at the time of submission and could have raised any concerns regarding the room sizes.
3. It explained that the legislation the resident had referred to only related to the assessment of properties for the purposes of establishing whether they were statutorily overcrowded. The legislation did not set out minimum requirements for bedroom sizes when a property was being assessed for planning or development purposes, nor did it set out minimum room sizes when rent levels were being assessed and applied. The landlord acknowledged that the resident’s third bedroom might be smaller than others but confirmed that it would still be classified as a bedroom. It explained that it would not be able to reassess the rent payable for the property. The landlord confirmed that the resident could escalate her complaint if she remained dissatisfied with its response.
The resident emailed the landlord on 13 July 2020 and asked for her complaint to be escalated. She advised that the room was not 51.45 square feet and asked that the landlord arranged for this to be measured. She felt that it was the landlord’s responsibility to investigate whether the build was completed to specification and did not feel that it was appropriate for the landlord to disregard legislation on this matter. She had found successful appeals related to bedroom tax which determined that a room under 50 square feet was not taxable due to it not being suitable for an adult, two children, or a child over the age of ten and felt the legislation would apply in this case.
The landlord called the resident on 14 July 2020 and arranged a visit to the property to survey the dimensions of the third bedroom on 17 July 2020.
The resident emailed the landlord on 15 July 2020 and expressed concern that her tenancy agreement did not refer to the number of permitted occupants in the property. She asked that this issue was added to her existing complaint. The landlord responded on the same day and advised that it was not able to add to her existing stage two complaint as this was not included in the original complaint made. It confirmed that it would contact the resident to discuss the new issue further. The resident disputed this and said that she would not have needed to raise a complaint had she been provided with this information as the room size would have been marked as under 50 square feet and the number of people permitted to use the room as a bedroom would have been nil.
The landlord’s records show that it called the resident on 16 July 2020 to discuss the missing information on her tenancy agreement. It explained to the resident that the tenancy agreement would not refer to room size as this would not be feasible given the number of properties it managed. It also explained that the resident was not overcrowded as she had a three-bedroom property, but noted that there was some discrepancy regarding this. It confirmed that its tenancy agreements were checked and verified by solicitors and it undertook periodic reviews to ensure that they complied with relevant regulations. It confirmed that it would provide a further response to the resident the following week as she felt that it had omitted required information from her tenancy agreement. The landlord’s records show that the resident called the landlord on 20 July 2020 for an update regarding this matter as she had not received a response.
The landlord emailed the resident on 23 July 2020 and explained the following:
1. It noted that it had visited the property on 17 July 2020 and found that the third bedroom was 1.61 square feet smaller than the approved design for the property. It had reviewed the physical solutions available and to achieve the minimum of 50 square feet it could move one wall back by 10.38mm. it noted that this may cause a large disruption for such a small margin.
2. It explained that, whilst small, the designed room size was deemed suitable for single occupancy for a child under ten. If the size of the room was resolved, this would not prevent the swing of the door being obstructed by the bed in place. It said that this was partly due to the size of the bunk bed in place. However, if the resident was to place the bed below the window of the room, the issue would be resolved. It attached drawings of the suggested layout.
3. It said that it was prepared to make the alterations as required but felt that it should also consider alternative solutions. It asked the resident to allow an additional ten working days for it to investigate the alternatives and respond. Alternatively, it would arrange for the physical works to be carried out.
The resident responded and confirmed that she was happy with the suggested additional ten working days for a response. She acknowledged that the physical works would cause a disruption but said that she had not been provided with what she was originally sold and was disappointed that the dimensions were not checked by the landlord upon completion of the build. The landlord confirmed that it would provide its proposal to resolve the issue by 6 August 2020
The landlord emailed the resident on 6 August 2020 and explained the following:
1. It confirmed its position that the design of the bedroom was regarded as adequate under the relevant standards for single occupancy by a child under the age of ten. It maintained its position that if the bed was a standard single and positioned under the window as intended, there would be no material issue. It had contacted the local authority’s planning department who advised that whilst there was a dimensional discrepancy, it was minor and had not resulted in the room not being usable. This would not trigger enforcement action on their part.
2. It had also been contacted by Environmental Health following the resident’s concerns about the air quality in the room. It confirmed that this would have been assessed as part of the building regulation application and deemed adequate to meet the requirements for a habitable room of this size.
3. It explained that it would not proceed to move the wall in the room as this would not materially change the suitability of the room as designed and the level of disruption would be disproportionate in respect of the benefit gained. It added that changing the furniture layout would allow the door to swing without obstruction.
4. It acknowledged that the resident had been active on ‘Home swapper’ to identify properties that were of interest and noted that the resident felt that others may be more likely to exchange if her property was reclassified as a two-bedroom property. It confirmed that the size of the property and rent regime had been determined and approved under the planning system. It confirmed that it did not own rental properties in the area in which the resident wished to move to, so could not offer a management transfer. It said that it could offer a two-bedroom property with large bedrooms in another area on social rent. It noted that the resident required a three-bedroom property but said that it could discuss this alternative if she wished.
The resident emailed the landlord on 11 August 2020 and asked for her complaint to be escalated to stage three. She explained the following:
1. She was not satisfied with the landlord’s handling of her concerns and said that she had experienced intimidating and unprofessional behaviour over the phone by the staff member involved in her complaint. She noted that they had threatened to rip out the bedroom and make in unbearable for her to live in the property. She felt that the landlord’s unprofessional behaviour was to protect itself and was not the behaviour of a responsible landlord. She also advised that she had recorded the telephone call but was not willing to share this.
2. She felt that it would have been in the landlord’s best interest to measure the room when it was purchased so that future tenants would not be overcrowded. The fact that the original design was approved at over 50 square feet was irrelevant as it was not built to that measurement. She acknowledged that the local authority had said that the size would not trigger enforcement action, but said that this did not change that the room was in breach of the specifications outlined in the Housing Act.
3. She noted the landlord’s comments about the air quality and noted that this was one of several potential health and safety hazards. She confirmed that Environmental Health would now be visiting the property and a report would be sent to the landlord in due course.
4. She had now moved her child’s bed to the position suggested by the landlord but this did not allow the door to open fully. She added that she had not received any form of guidance from the landlord on the regulations of the room size or the impact that furniture sizes or layout made. She also noted that the room had no space for a wardrobe and that this was causing added inconvenience as clothes needed to be stored elsewhere.
5. She maintained her position that the landlord had a legal requirement to include the number of permitted persons on her tenancy agreement and that this had not been included on her current agreement. She felt that she would have questioned that her property was suitable for 4.5 people at the time if this had been included.
6. She found the landlord’s offer of a two-bedroom property insulting and irresponsible as she had been made aware that a three-bedroom property was soon to become available by another tenant. She declined the landlord’s offer and asked it to look for suitable three-bedroom accommodation in specific areas.
7. She expressed concern that the landlord was not willing to rectify the room size issue and asked the landlord to reconsider its offer to move the bedroom wall to allow for more space. She added that due to the disruption, she would require alternative accommodation and any damages covered if the work was carried out. Alternatively, she asked the landlord to re-classify the property, reduce her rent and backdate this.
The landlord responded to the resident on 19 August 2020 and explained the following:
1. It apologised for the way in which she believed it had dealt with her complaint to date. It confirmed that it would review this and identify ways to improve its service moving forward. It explained that the affordable housing on the development was approved by the local authority and the developer of the building. It added that it did not have any input over the design, or tenure of the property as this was decided by the local authority. The local authority then transferred the property to a housing association, in this case the landlord.
2. It agreed that the dimensions of the room should have been checked more closely during the construction phase, which would have avoided the error carrying forward. It had taken steps to prevent a reoccurrence of this issue and passed on instructions to check the dimensions during the construction phase. It explained that the local authority had not formally adopted the Nationally Described Space Standards but that new planning applications were reviewed with the standards in mind.
3. It further explained that it had contacted the local authority to highlight the construction error and seek its opinion on what course of action to take. Whilst the local authority did not consider this to be a breach, this did not have any bearing on the discussions it would have with the building developer as the room in question was less than 50 square feet. It proposed to make the required changes to the wall to ensure that the bedroom complied with requirements. It asked the resident to confirm whether she agreed to having the work completed and added that it would offer the resident alternative accommodation and make-good any decorations.
4. It confirmed that it was reviewing the information provided related to the details of the tenancy agreement and confirmed that the resident would receive a response. In relation to its offer of a two-bedroom property, the landlord apologised that the resident had found this insulting. It intended to make the resident aware of new homes in her desired areas it had under construction which were not subject to the normal advertising processes. It had discussed the resident’s comments regarding a three-bedroom property becoming available and confirmed that the resident was currently band D priority for bidding on properties. It confirmed that the resident did not meet the criteria for a management transfer as she was considered to be adequately housed. It explained that those who were vulnerable or significantly overcrowded would be prioritised.
The resident responded on the same day and asked the landlord to confirm that at present the room was not considered a bedroom. She added that this would mean that her family were overcrowded and she would meet the criteria for the three-bedroom property available. The landlord responded and confirmed that the room was classed as a bedroom and had been used as such for over two years. The local authority had confirmed that the room was a bedroom as approved under the planning permission. It had proposed to move the wall to ensure the floor area met with the approved design plans, although it was not obliged to make these adjustments. The resident asked for her complaint to be escalated to stage three of the landlord’s complaints procedure on 20 August 2020 as she was not satisfied that the complaint had been resolved. The landlord responded and acknowledged the resident’s escalation request.
The stage three panel meeting was held on 6 October 2020. The landlord issued its stage three complaint response on 16 October 2020 and explained the following:
1. It confirmed that it did not intend to reclassify the property as a two-bedroom property based on the current room sizing. It explained that it had purchased the resident’s property from the developer upon completion and the plans had been approved by the local authority’s planning department. It acknowledged that the floor area of the third bedroom was smaller than the original design at 49.71 square feet. Environmental Health had subsequently inspected the property and concluded that it was adequately sized for five persons to sleep in. As such, the property met the requirement specified for a three-bedroom property.
2. It apologised that the resident felt that her complaint was not handled with courtesy. It noted that the member of staff responsible had offered their apologies during the panel meeting and confirmed that it was not their intent to cause any ill-feeling. It hoped that this apology went some way to reassure the resident.
3. It acknowledged that the complaint was not handled correctly from the outset. It concluded that it had been quick to verbalise its ideas rather than take time to think through the available options and present them in a clear and concise way.
4. The panel recommended that the wall in the third room was moved to the correct location as specified in the original plans. It said that it should also review whether there was scope for the wall to be moved out further to safely maximise the room size available. It recommended that the works were completed at a time suitable to the resident’s family’s needs, possibly during school holidays and that a suitable temporary alternative accommodation was sourced whilst the works were undertaken.
On the same day, the landlord wrote to the resident and provided details of the work to be undertaken to the third bedroom. It had identified that by reducing the size of the landing to the same width as the stairs, it could increase the size of the room to 54.14 square feet. It said that it would also move the bedroom radiator to allow more useable wall space within the bedroom. It confirmed that the works would take one week to complete and detailed the day-to-day programme of works. It confirmed that the resident would be offered suitable temporary accommodation whilst the works were carried out. It said that it would not be possible to arrange the work for October due to lack of available contractors, however, it could look to arrange the work in the school holidays after the new year.
Following this, there was a delay to the work being undertaken due to the impact of Covid-19 and the resident’s decision to explore her options in regard to a mutual exchange. It is noted that the landlord was awaiting confirmation from the resident about dates which would be suitable and the resident was still residing in the property as of 7 July 2021.
The resident referred her complaint to this Service as she remained dissatisfied that her property had not been reclassified as a two-bedroom property due to the small size of the third bedroom. She had accepted the landlord’s apology regarding staff conduct but did not feel that this was sufficient. She was dissatisfied with her current level of rent and wanted the property to be reclassified as a two-bedroom property. She wanted her rent to be adjusted accordingly and refunded to when she raised her complaint. She was happy to pay the normal level of rent once the walls in the room were moved.

Assessment and findings

The landlord’s handling of the resident’s reports that one of the bedrooms in her property was too small to be classed as a bedroom.

In this case, the resident believes that the property had been registered incorrectly by the landlord and her house should be considered a two-bedroom property as the third room was too small to be considered a bedroom in line with the Housing Act 1985 as it measured to under 50 square feet. She has asked that the landlord reclassify her property as having two bedrooms.
Currently, a bedroom cannot be disregarded for benefit purposes because it is less than 50 square feet without considering other factors, including; size, configuration and overall dimensions of the room, access, natural and electric lighting, ventilation and privacy. The regulations regarding whether a room should be classed as a ‘bedroom’ are not prescriptive and there are no current legal requirements regarding bedroom size in a single tenancy household.
Section 326 of the Housing Act 1985 relates specifically to statutory overcrowding. It outlines the space standard defining statutory overcrowding so that a property is overcrowded when this is breached. The definition includes a calculation that a person aged under ten years old is expected to have a room with a floor area of at least 50 square feet. The space standard is only breached when the total number of persons in a property exceeds the lower of either the specified number of persons for the number of rooms (counting both living rooms and bedrooms), or the specified number of persons for the floor area of each room in the property.
It is not the role of the Ombudsman to make a definitive decision on whether the resident’s property is a two or three-bedroom property or order the landlord to re-designate the property as having two bedrooms. This is because decisions regarding statutory overcrowding are for the local authority to decide. Environmental health had not finalised its report at the time of the complaint, but it is not disputed that it had found the property suitable to house five individuals. The resident has expressed concern that she feels that the number of permitted occupants should be 4.5 rather than 5. If the resident has further concerns about the findings of Environmental health, she may wish to raise these concerns directly with the local authority and ultimately approach the Local Government and Social Care Ombudsman (LGSCO) if she remains dissatisfied with its response. The resident may also wish to seek legal advice on this matter as the tenancy agreement is a legal document which confirms the number of bedrooms to be three.
In this case, the landlord made reasonable steps to identify whether the door of the third bedroom could be changed following the resident’s reports that this would not close given the size of the room. The landlord then took appropriate steps to measure the room. It is noted that the resident has raised concern that this was not done sooner, however, this was unlikely to have changed the overall outcome of the complaint. Ultimately, it would have been the developer’s responsibility to ensure that the bedroom met with the planning permission that had been granted and the local authority’s responsibility to check this before signing off on the build.
It is not disputed that the size of the third bedroom was smaller than the original plan for the room. In view of this, it was reasonable for the landlord to contact the local authority’s planning department about the discrepancy. Ultimately, the local authority determined that the small discrepancy in sizing would not trigger any enforcement action in this case. As such, the landlord would not have been obliged to take any further action. It was reasonable for the landlord to recommend that the resident altered the configuration to the bedroom to allow the space to be maximised as the layout of a room can considerably impact the amount of space available.
The landlord would not be obliged to move the wall in the third bedroom however it was reasonable for it to do so as a resolution to the complaint, given that the current room was smaller than the original design. The landlord took reasonable steps to see whether the room could be made larger than the original plan, confirmed that it would offer alternative accommodation and added that it would complete the work during a suitable time for the resident. It is noted that this had not gone ahead as of July 2021 as the landlord was waiting to be provided with suitable dates from the resident and it was also faced with the restrictions in place as a result of Covid-19 in early 2021 which was outside of its control.
It is noted that the resident wants to move to a different area and raised concern that she experienced difficulty when pursuing a mutual exchange due to the small third bedroom in the property. The landlord would not be responsible for the difficulties the resident faced when pursuing a mutual exchange and would not be obliged to carry out a management transfer as the resident was considered to be adequately housed. This report finds that the landlord has taken reasonable steps to offer the resident an alternative property. Whilst this was smaller than necessary for her family size, it was reasonable for the landlord to offer this as a means to allow the resident to move to an area of her choice sooner than if she waited for properties to become available through mutual exchange or through the bidding system given her current banding.
The resident had also raised concern that the number of permitted occupants for the property was not listed on her tenancy agreement. As the tenancy agreement is a legal contract, it is not the role of this Service to decide on whether the agreement is valid or order the landlord to alter the terms of the contract. The resident would be advised to speak to the landlord and come to a mutual agreement on whether the number of occupants should be included. The resident may wish to seek legal advice on this matter if she remains dissatisfied with the landlord’s response.
In summary, the landlord has taken reasonable steps to explain its obligations and contacted relevant local authority departments for further clarity on this matter.

The resident’s concerns about the behaviour of a member of the landlord’s staff.

In her communication with this Service, the resident has detailed what was said by a member of the landlord’s staff on phone calls which she had recorded. She explained that she had found the conduct of the member of staff handling her stage two complaint unprofessional and intimidating.
In conducting its investigations, the Ombudsman relies on contemporaneous documentary evidence from the time of the complaint to ascertain what events took place and reach conclusions on whether the landlord’s actions were reasonable in all the circumstances of the case. In the absence of any dates, times or examples of the behaviour being supplied to the landlord, there are limited steps it could take to investigate the reports or implement practical measures to address the issues. It is noted that the recordings of the calls in question were not provided to either the landlord or the Ombudsman to review, however, the resident would have had the opportunity to raise her specific concerns about what was said on the calls during the panel meeting on 6 October 2020.
It was reasonable that the member of staff apologised to the resident and explain that it had not intended to offend or intimidate her and it is noted that the resident had accepted the apology at the time. There are limited further steps that the landlord could take as it had not been provided with evidence of the calls or details of what was said. The Ombudsman does not consider or comment on how a landlord should deal with identified service failings by the individual members of staff involved, in terms of any disciplinary proceedings. This is in accordance with paragraph 39 (k) of the Housing Ombudsman Scheme, which states that this Service will not consider complaints which concern terms of employment or other personnel issues. The landlord’s apology in this case was proportionate.

Determination (decision)

In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress in regard to the resident’s reports that one of the bedrooms in her property was too small to be classed as a bedroom prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
In accordance with paragraph 39(g) of the Scheme, the complaint about the level of rent charged by the landlord to the resident based on the number of bedrooms in the property is outside the jurisdiction of this Service to consider based on the reasons detailed in paragraphs 3 to 5 of this report.
In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in respect of its response to the resident’s concerns about the behaviour of a member of the landlord’s staff.

Reasons

The landlord took reasonable steps to explain its obligations to the resident and involve the relevant authority when explaining its position. The matter has been fully considered by the landlord and it was reasonable for it to offer to move the bedroom wall to allow more floor space given that the room size was found to be smaller than the original design plan.
The landlord has acted fairly by apologising to the resident for the impact the actions of its staff member had. There were limited further steps the landlord could take without being provided with direct evidence the behaviour, and call recordings.

Recommendations

It is recommended that the landlord carries out the agreed work once a suitable date has been confirmed by the resident if it has not already done so as the finding of reasonable redress was based on this offer. The landlord should contact the Ombudsman and the resident to confirm its intentions regarding the work to the third bedroom in the resident’s property.