Lambeth Council (202123086)

REPORT

COMPLAINT 202123086

Lambeth Council

4 August 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:
   1. The landlord’s handling of the resident’s request for a management transfer.
   2. The landlord’s complaints handling.

Background

2. The resident is a tenant of the landlord, a local authority. The tenancy commenced in August 2015 and the property is a 2-bedroom ground floor flat. The resident’s 2 young daughters are autistic and have health conditions.
3. In September 2019, the resident contacted the landlord and requested a management transfer following reports of a serious incident involving the neighbour above her. Prior to this, the resident had reported to the landlord noise nuisance and antisocial behaviour (ASB) from the neighbour. The resident provided a letter of support for relocation from the police on 27 November 2019, and informed the landlord her family was at risk from the neighbour.
4. On 5 December 2019, the resident was awarded the landlord’s highest transfer priority band and the landlord informed her she was entitled to bid on all the landlord’s 2-bedroom properties away from the road where her current property is situated. This was because it assessed her children as potentially at risk of harassment or violence. The resident subsequently advised the Ombudsman that she has been bidding for properties since December 2019, and has provided further letters of support from 2021 onwards from the police and her older daughter’s school, recommending an immediate relocation of the family given the circumstances. These included the risk to them of violence related to the neighbour, and the effect of the neighbour’s ASB on her daughters’ autism and health conditions.
5. In February 2022, a local councilor emailed the landlord on behalf of the resident requesting an update on her transfer, which she wanted a direct offer for of a similar property to her current home, and asking how long the resident had to make bids. It responded to this as an enquiry response on 15 March 2022, stating that, since December 2019, the resident had placed 12 bids, all for the most popular types of home. It also said she could be added to the list of those seeking a direct offer.
6. After the resident and her former representative reportedly unsuccessfully attempted to make a stage 1 complaint to the landlord from January to May 2022, the Ombudsman began asking to it to respond this from May 2022 onwards, and chased it for a response in July 2022. Around July 2022, the resident informed the landlord that she had lost trust in it because of her lack of success in securing a transfer, despite having made so many bids. It apologised that she had lost trust and said it had no wish for the resident to move to a home that she would not be happy in, nor did it wish to force the resident down the route of direct offer against her will, but it repeated that she was bidding for the rarest and most popular type of property that made her wait longer.
7. A medical assessment was carried out by the landlord’s housing medical advisor (HMA) in August 2022 and the resident’s younger daughter was awarded Band B – urgent medical need. The resident’s younger daughter was also awarded a category 3 medical need (CAT3) for level access ground floor accommodation. The corresponding assessment detailed that the resident could bid for level access ground floor and all types of mobility and wheelchair homes, and would get heightened priority for such types of home.
8. The landlord logged a stage 2 complaint on 4 August 2022 and issued its final response on 25 August 2022 which said:
   1. the resident’s rehousing application was awarded Band A Level 2 in December 2019 and that Band A is the highest priority band under its housing allocation scheme.
   2. the resident is authorised to bid for 2-bedroom properties and the household has a category 3 medical need (CAT3) for level access ground floor accommodation.
   3. since December 2019 the resident had made 15 bids for the most popular types of properties, which attract a large number of bids from other applicants, and therefore may result in a longer wait to be successful bidder.
   4. it had repeatedly offered to make the resident a direct offer of a property suitable for her family’s needs, however it appeared that the resident was not prepared to accept the limitations of such an offer. The landlord said the direct offer would be a home of the correct size, away from the resident’s current home, within reach of schools, health-related places and work, but would not necessarily be the same type of property as the resident’s current home.
   5. it was willing to start a search for a direct offer property suitable to the resident’s family’s needs if she made a request for a direct offer, and it provided a copy of its allocation scheme.
9. The resident initially referred her complaint to the Ombudsman in January 2022. The resident said she was unhappy with the way her request for a move had been handled, as well as her reports of ASB from her neighbour, and said her children were suffering as a result. As a resolution to her complaint, the resident is seeking a move to another property, and advised she would like to be in the catchment area for her daughters’ school. She also provided specialist medical evidence that they needed a 3-bedroom property because her daughters required separate bedrooms due to their autism, after being told that she needed such evidence to qualify for this. The resident additionally suggested to the landlord that its handling of her case had been as a result of racial discrimination.

Assessment and findings

Scope of investigation

10. The resident has commented on her daughter’s health conditions, provided medical evidence of these, and said that her housing situation is affecting their health. This is very concerning, but the Ombudsman cannot assess medical conditions and how these may affect housing need because, under the Scheme, we do not have the authority to do so.
11. Additionally, the Ombudsman notes the resident’s comments stating that this situation is a result of the actions of her neighbour and the landlord’s handling of her reports of their noise nuisance and ASB, which is also very concerning. This investigation will not, however, examine the landlord’s handling of reports of noise nuisance or ASB but will focus on its handling of the resident’s request to move including whether the landlord followed its allocation scheme, and whether it treated the resident fairly in the circumstances. This is because, in accordance with the Scheme, the Ombudsman may not investigate complaints made prior to exhausting the landlord’s complaints procedure, and there is no evidence that a complaint from the resident about its handling of her noise nuisance and ASB reports has done so yet.
12. In the complaint, the resident asserted that the landlord discriminated against her in that her family were not given consideration for properties due to their race. This is additionally of concern, but the Ombudsman cannot determine whether discrimination has taken place in a legal sense in terms of alleged breaches of the Equality Act, as we do not have the authority to do so under the Scheme. The Ombudsman has jurisdiction to consider provision and management of social housing. As such, we would not be able to decide if there was discrimination. This investigation will, however, investigate whether the landlord treated the resident fairly and whether its actions were reasonable in the circumstances.

Housing allocation scheme

13. The following are the elements of the landlord’s housing allocation scheme that are relevant to this case:
    1. Tenants may be placed in Band A (emergencies and strategic priorities) for reasons such as risk of serious violence or harassment; a life threatening medical emergency; or a referral from the council’s adult and children’s services where housing is required to prevent significant harm to a child in the family. Such tenants are allowed to bid or be offered an emergency transfer to a property with the same number of bedrooms as their current home. In exceptional circumstances, the landlord has discretion to allocate a property that is either smaller or larger than the allowed property size.
    2. Band A applicants are normally placed in Level 2 but the landlord may, at its discretion, place exceptionally urgent cases in Level 1.
    3. The landlord reserves the right to make a direct offer of a property at any time to an applicant in exceptional circumstances. Examples of such circumstances include where the property is of a specialised type, or the property is required for an emergency or other high priority cases.
    4. Applicants in Band A will normally be given a time limit within which to make bids, and may be made a direct offer if they have not made a successful bid at the end of that time.
    5. The landlord may limit the number of direct offers, and sanctions may be applied if a property that is suitable is unreasonably refused: these may include suspension from being able to bid or receive further offers, or the placing of the resident in a lower priority band.
    6. If an applicant is dissatisfied with its decision, they can request a review; such a request must be made within 21 days of the date of the decision.

The landlord’s handling of the resident’s request for a management transfer

14. Due to the shortage of social housing landlords are required to apply their policies and procedures, which are based on the risk to occupants, when considering applications. This means that some residents who apply to move home will be given higher priority than others.
15. On receiving a request for a management transfer, the landlord has an obligation to respond in a reasonable timescale, setting out the resident’s options to enable a successful move. The resident in this case first requested a management transfer in September 2019, and the landlord received evidence in support of this from the police on 27 November 2019, before it responded to this request on 5 December 2019.
16. The landlord’s decision was that a move was required, given the children in the household were potentially at risk of harassment or violence, and that the resident could bid for 2-bedroom homes outside the vicinity of where she currently lived. The landlord responded to the resident’s request for a move within a reasonable timeframe, given that it received the police’s supporting evidence 6 working days earlier. It also took into account the resident’s supporting evidence, as well as correspondence from the police supporting a move, when making its decision. This was additionally in line with the landlord’s housing allocation scheme’s requirement for it to place her in Band A for a risk of serious violence or harassment, or of significant harm to a child, to move to a property of the same size as her current 2-bedroom property.
17. Although the resident was in the highest banding for allocation, and had bid a number of times, the family were then unsuccessful in securing a move. The resident felt the landlord was treating her and her family unfavorably. The resident considered the reason for the move was not a personal decision, but a result of the circumstances she found herself in.
18. The resident stated she had provided further letters to the landlord from 2021 onwards, from medical professionals, the police and her older daughter’s school, to support her request for an immediate move, due to the risk of violence and the effect of her neighbour’s ASB on her children’s autism and health conditions. The evidence shows the landlord took these into account when the HMA make their assessment in August 2022. It was therefore appropriate for the landlord to rely on this assessment when considering whether the resident’s banding should change.
19. The Ombudsman notes the resident was already in Band A, the highest band in the landlord’s housing allocation scheme. Additionally, the award of CAT3 medical need for level access ground floor, mobility and wheelchair accommodation, in light of the supporting evidence, demonstrated the landlord considered of the resident’s younger daughter’s medical conditions. This showed that the landlord took into account the household’s needs, so it could appropriately assist the resident to bid for and receive offers of suitable properties accordingly.
20. Given the resident’s concerns expressed via her local councilor in February 2022, it was also reasonable for the landlord to offer the resident a direct offer outside the vicinity of the current property where she lived from March 2022 onwards. This would therefore serve to reduce the resident’s concerns about the neighbour and about the safety and wellbeing of her children. This was in line with its housing allocation scheme, which allows tenants in Band A to bid for or be offered an emergency transfer to a property with the same number of bedrooms as their current two-bedroom home. The number of bedrooms is based on the composition of the particular family.
21. However, the resident said she wanted a property on a par with her current home and that she was not willing to accept the limitations of a direct offer. The landlord advised the resident of the options available to her and that, if she was bidding for highly sought properties, then she would have to wait longer as there were very few of these, and there may be an applicant with more pressing needs. Its response was reasonable in this respect, given the high demand for and low supply of such properties.
22. The resident did not engage with the direct offer process and continued to bid on a number of properties, but was advised in each case that she had been unsuccessful. The landlord also advised that it has no control over the stock that is available. The landlord’s comments that the availability of certain type of properties, such as ground floor level access property with garden, was reasonable. Further, we have seen evidence that landlord has made the resident fully aware of this and encouraged her to widen her opportunities by considering alternative options.
23. The landlord cannot be held accountable for the resident’s decision to continue to bid on highly sought properties as is her right to do so. However, the landlord has acted fairly by repeatedly offering to make a direct offer of accommodation to the resident in order to overcome her unsuccessful bids for an emergency move.
24. The Ombudsman empathies with the resident’s concerns, who clearly wanted to ensure her children have an accessible home where her family feel safe. While the resident’s home situation was clearly distressing and frustrating, the landlord acted appropriately in managing the resident’s expectations by making her aware of the limited availability of housing stock and that the demand for secure and affordable housing outweighed the supply.
25. Under the landlord’s housing allocation scheme, it could only have assisted the resident further during the course of her complaint by placing her Band A transfer application in Level 1, as an exceptionally urgent case, to give her priority over other Band A applicants. As it had discretion to decide whether or not to do so, and all Band A cases including the resident’s were already prioritised over other applicants as urgent, it was not obliged to place her in Level 1 at that time. However, she has subsequently provided specialist medical evidence of both her daughters requiring separate bedrooms in a 3-bedroom property due to their autism.
26. Therefore, the landlord has been recommended below to review the resident’s transfer application to consider awarding her Band A Level 1 priority for a 3-bedroom property in light of her daughters’ latest specialist medical evidence, if it has not done so recently. It has also been recommended below to continue to work with the resident to enable a move and, if the resident is agreeable, the landlord should start a search for suitable direct offer properties, taking into account the circumstances of the resident and her family, and within reach of schools, health related places and work.
27. Overall, the approach taken by the landlord was satisfactory, and that there is no evidence to suggest that the resident has been treated unfavorably. The Ombudsman does not underestimate the distress and inconvenience experienced by the resident, however the evidence available has shown that, overall, the landlord acted fairly and in accordance with its housing allocation scheme when responding to the resident’s requests for a management transfer.

The landlord’s complaints handling

28. The landlord’s corporate complaints policy states that a complaint is an expression of dissatisfaction by resident where the initial response to their problem has not proven satisfactory. The complaints process has two stages, at the first stage a response is due within 20 working days, and at the second stage a response is due within 25 working days. If a complaint cannot be responded to within these timescales, an interim response should be sent explaining the reason for the delay and when a response can be expected instead.
29. The resident’s former representative contacted the Ombudsman for assistance in pursuing her complaint on 16 May 2022. Subsequently, we contacted the landlord on 24 May 2022 requesting a formal response to the resident’s complaint, however, despite acknowledging the Ombudsman’s request the next day, the landlord failed to log this as formal complaint.
30. The Ombudsman again wrote to the landlord on 20 July 2022. The landlord’s records indicated that it acknowledged a stage 2 complaint on 4 August 2022. This is of significant concern, as the fact remains that the landlord was alerted to the existence of the resident’s complaint from the Ombudsman on 24 May 2022, and it did not provide its final response until 25 August 2022, a period of over 3 months, which was 25 working days later than its corporate complaints policy’s 25-working-day stage 2 response timeframe.
31. The landlord missed several opportunities to respond the resident’s concerns earlier. These delays would have caused frustration to the resident. Moreover, the landlord did not issue an interim response explaining the reason for the delay and when a response could be expected instead, contrary to its policy, neither did it acknowledge nor apologise for complaint handling errors in its final response.
32. Furthermore, the landlord failed to provide a stage 1 response to the resident. This is contrary to the corporate complaints policy’s 20-working-day stage 1 response timescale, and the Ombudsman’s Complaint Handling Code (the Code) which states the landlord must only escalate complaint to stage 2 once it has completed stage 1, and at the request of the resident. This is a serious failing. The landlord should have made every effort to resolve the complaint in the earliest stage. Had it done so, the landlord could have addressed her concerns quicker, and its failure to do so caused significant time and trouble and led to the resident approaching the Ombudsman for assistance.
33. The landlord’s failure to act in accordance with its own policy and the Code added to delays in getting matters resolved, resulting in concerted efforts from both the resident and the Ombudsman to progress the complaint. Therefore, there was failure with respect to the landlord’s complaint handling, and an order is made below for compensation in line with the landlord’s compensation policy and the Ombudsman’s remedies guidance. The former recommends compensation from £50 for time and trouble beyond that routinely incurred when making a complaint, and the latter of which suggests compensation of up to £100 for time, trouble and delays in getting matters resolved.
34. Additionally, a recommendation has been made below for the landlord to review its staff’s training needs with regard to their application of its corporate complaints policy and the Code. This is to ensure that it issues timely complaint responses at each stage of its complaints procedure in every relevant case.

Determination

35. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of the resident’s request for a management transfer.
36. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s complaint handling.

Order and Recommendations

37. The landlord is ordered to pay the resident £100 compensation within 4 weeks for the frustration and inconvenience caused by the complaint handling failures in her case.
38. It is recommended that the landlord:
    1. Review the resident’s transfer application to consider awarding her Band A Level 1 priority for a 3-bedroom property in light of her daughters’ latest specialist medical evidence, if it has not done so recently.
    2. Continue to work with the resident to enable a move and, if the resident is agreeable, the landlord should start a search for suitable direct offer properties, taking into account the circumstances of the resident and her family, and within reach of schools, health related places and work.
    3. Review its staff’s training needs with regard to their application of its corporate complaints policy and the Code, to ensure that it issues timely complaint responses at each stage of its complaints procedure in every relevant case.

39. The landlord shall contact the Ombudsman within 4 weeks to confirm that it has complied with the above order, and whether it will follow the above recommendations.