LiveWest Homes Limited (202227876)

REPORT

COMPLAINT 202227876

LiveWest Homes Limited

28 June 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 is about the landlord’s handling of the resident’s request for a management transfer.

Background

The resident is an assured tenant of the landlord, which is a housing association. The property is a 2-bedroom terrace and the resident’s tenancy started in January 2020. She moved to the property with her daughter and her partner has since moved in.
Around 18 January 2021 the resident called the landlord to report a change in circumstances. She said she was 18 weeks pregnant and her partner had been granted custody of a daughter that the court had ordered to live with him.
As there would be 5 people at the property the resident called the landlord on 15 March 2021 and asked if she could be placed on its exceptional transfer list due to overcrowding. She said her eldest daughter was diagnosed with ADHD which could make sharing a bedroom problematic.
The resident’s baby was born in June 2021. The landlord emailed the resident on 15 July 2021 and said it had asked for her to be added to its transfer list. It wrote to her again 11 days later and said she was on the list. It said: it would make 1 offer of a suitable property; she should register and bid on properties through the Choice Based Lettings System (CBLS) to maximise chances of a move; her rent account should be in credit and she was required to pay 4 weeks rent in advance before any transfer; a pre-void inspection (PVI) of her property must be passed before a transfer; and her case would periodically be reviewed.
There is no evidence of further contact until the landlord wrote to the resident on 17 May 2022 due to a failed rent direct debit. The resident emailed and said she had resigned from her job due to ill health but had submitted her universal credit claim.
The landlord sent a Notice of Seeking Possession by post and emailed the resident on 13 June 2022 after the June 2022 direct debit also failed to collect. It asked her to make contact as she owed £1,033.87 and sent a further letter on 28 June 2022 saying it would apply to court for possession of the property.
The resident emailed the landlord on 3 July 2022 and asked to arrange a payment plan. She said she was pregnant again, but due to concerns around her unborn baby, her doctor said she was not fit to work until August 2022. The resident agreed to pay an additional £40 per month and the landlord set up a new direct debit.
There were no further issues until the resident’s October 2022 rent direct debit failed. She emailed the landlord on 9 October 2022 and said she had made a partial payment, would pay the remainder when she received her benefits, and had a new bank account. The landlord updated the direct debit details for the following month.
The landlord emailed the resident on 8 December 2022 and said it wanted to discuss her eligibility for a property she matched with for an exceptional transfer. It is not clear exactly what the resident said in response, but the landlord sent details of the property and said she would need to pay 4 weeks rent in advance of any new tenancy start date and it would book an end of tenancy PVI if she accepted. The resident accepted the transfer offer later that day.
The landlord then completed the PVI on 10 January 2023. It also called the resident as the rent direct debit failed (for the fourth time in 9 months). It said she had breached her payment plan and it would apply for possession of the property unless it received ‘a significant payment’ within 24 hours. The resident emailed it the same day and said her bank account was frozen after suspected fraudulent activity (no conclusive evidence was provided in support). The landlord acknowledged this, but explained that it had to submit the application for possession due to the rent arrears of £1,671.27, which it did the following day.
The landlord emailed the resident on 12 January 2023 and said: she had been in rent arrears prior to the bank issue, but there was time to reduce the arrears before a transfer; any remaining arrears would be written in to the terms of her new tenancy agreement; rent is paid in advance for the new property; and the PVI had been ok. It wrote to the resident with a court date for the possession hearing the following day.
The resident emailed the landlord on 17 January 2023 saying she had missed 4 rent payments in 3 years but had increased payments to address this. She also submitted a defence to the court saying that she was due to move to the new property before the scheduled court date of 14 February 2023 and giving up work and solicitor fees incurred by her partner (in relation to custody of his daughter) had caused financial pressures.
Internal landlord emails of 19 January 2023 said the transfer was in progress and it had agreed rent arrears would be written into the resident’s new tenancy. However, senior management decided the arrears need to be cleared before a transfer could take place and a frozen bank account was not a valid reason for arrears not to be cleared.
Further internal landlord emails of 23 January 2023 said, although the resident had been on its exceptional transfer list since February 2022, an erroneous outstanding task meant she had not appeared on the match list for potential properties until December 2022. Due to the identified error, the landlord told the resident to clear as much of the arrears as possible before the new tenancy started, and anything outstanding could be written into the new tenancy agreement. It emailed her, as the arrears had increased again, and asked if she had the means to pay the rent in advance for the new property. She replied the same day and said her partner’s boss would gift the money, but her bank account was still frozen.
The landlord attempted a home visit on 24 January 2023 but the resident was out. She emailed the landlord and said she did not want it to visit. Internal landlord emails said it had still not seen any conclusive evidence to support that her bank account was frozen.
On 30 January 2023 the landlord’s senior management said the transfer would likely be blocked due to the arrears. It said the resident owed £2,152.74 in arrears plus £335 court costs and it had not received a payment since 1 December 2022.
Further internal landlord emails of 1 February 2023 said arrears continued to escalate due to the resident’s failure to maintain her payment plan. It acknowledged that it was not sure the resident was aware her arrears could impact the transfer, but said she had refused to engage since the possession application.
The resident chased for updates on 2 and 3 February 2023 in relation to the transfer. The landlord replied by email the same day and said approval of the transfer was with senior management. The resident said she was not informed the decision would be escalated to management, and she was confused due to the wording of the email of 12 January 2023. She said she had painted her property and removed flooring as instructed after the PVI.
The landlord emailed the resident on 6 February 2023 and said the transfer could only complete on the basis she cleared the arrears. The resident replied and said she was assured her arrears would be added onto her new tenancy. It is not clear exactly when the messages were sent, but she also provided screenshots of correspondence from the landlord which said missed rent payments “would not stop the move.”
Later that day the landlord emailed the resident and said, due to arrears and lack of evidence in relation to alleged fraudulent activity on her bank account, the decision over whether the transfer could complete was escalated to senior management. It asked her whether she could reduce the arrears. The resident made a £300 payment later that day and proposed a payment plan to reduce the remaining arrears.
The landlord rejected the resident’s proposal on 9 February 2023. It said if the debt was moved to a new tenancy it would terminate any court order and it would be unable to enforce the debt if she stopped paying. The resident said she felt she had been bribed to pay arrears to complete the transfer. She also said she had camera footage (not provided to this Service) from the inspection where she was told to remove flooring and paint her walls, which she did under the impression she would then be able to move.
A letter was sent to the resident on 14 February 2023 that said the scheduled court case was adjourned, on the basis she paid rent plus payments towards her arrears. It said no further action would be taken if she did so, but if she did not, the landlord would refer the case back to court.
The landlord received a court letter on 27 February 2023 which notified it of the resident’s intention to claim for compensation and damages through the court following the declined transfer.
An internal landlord email on 1 March 2023 said it never formally offered the resident the property and only verbally told her it had a suitable match. However, it acknowledged it had conversations with her in relation to writing arrears into a new tenancy agreement, but only as an option if the arrears were not cleared by the time the property was ready to move in to.
The resident discontinued her claim against the landlord on 11 April 2023 and raised a formal complaint 2 days later. She said it had lied about why her transfer had been declined and she had been bullied and discriminated against which affected her mental health.
The landlord unsuccessfully attempted to call the resident the following day and acknowledged the complaint on 2 May 2023. It spoke to her on 9 May 2023 and agreed an extension to respond before it issued its stage 1 response 3 days later, as follows:
1. It had changed its exceptional transfer policy in 2022 due to the number of households that required a transfer. She should have been removed, but an administration error meant she had remained on the list.
2. Rent arrears were grounds for refusal of a transfer. When she was offered the property she had time to reduce the arrears and any outstanding arrears could be written into her tenancy agreement. However, senior management rejected her payment plan as it did not think enough of the arrears were cleared.
3. It acknowledged that it was not clear the transfer may not complete if the arrears were not reduced enough, or how much would need to be cleared.
4. Completion of a PVI misled the resident as it indicated the transfer would go ahead. However, if she intended to move she would have had to paint the walls and remove the flooring anyway.
5. It offered £50 compensation to recognise the communication failures which led to the resident painting her walls and removing flooring.
The resident escalated the complaint on 19 May 2023 as she felt the compensation was insufficient and an administration error did not justify what had happened. The landlord issued its stage 2 response on 5 June 2023, as follows:
1. It could transfer remaining arrears to a new tenancy if the resident was unable to clear all the arrears by the time the property was available. However, the advice was given on the basis no more rent payments were missed, but the January 2023 payment was then missed.
2. With the level of arrears, it would have expected evidence of the frozen bank account and an agreement to clear the arrears. As this was not provided, the transfer request was escalated to senior management who declined the transfer unless the arrears were cleared in full. This was because rent arrears was a tenancy breach and transferring debt to a new tenancy is at the discretion of the landlord as it presents a significant risk.
3. There was no evidence of bullying or discrimination.
4. Its communication in relation to the PVI could have been clearer, but it was only after the PVI was completed that court action took place and the decision to stop the move was considered due to the level of arrears. It was unfortunate that the resident had prepared for the move, redecorated, and removed carpets. However, its actions to advise what was required had been done in line with process and good faith that she maintained rent payments. Rent was entirely her responsibility to maintain, and was the only reason the move had not progressed.
5. Due to the housing shortage, it reviewed the threshold for those who qualify for an exceptional transfer. Under the terms of the new policy, the resident would no longer qualify for an exceptional transfer. In the summer of 2022, it wrote to residents that no longer met the threshold and advised them that if they had not been re-housed by January 2023, they would need to seek accommodation via the CBLS. However, due to an error (the resident’s application was in a suspended status) she did not receive the information. Despite this, when a property became available she was contacted.
6. It would reinstate the resident to the exceptional transfer list if she reduced her arrears to less than 4 weeks rent. However, at the time of a potential offer the arrears must be no more than £500 to enable it to be written into any new tenancy.

Events after the end of the landlord’s complaints process

Between August and November 2023 there were issues with payment of rent to the landlord from Universal Credit. The resident’s partner made the landlord aware of the resident’s mental health struggles and personal circumstances. Despite the landlord having the option to relist with the court for a possession order, it did not do so. The resident made payments to bring her rent account back up to date by early November 2023.

Assessment and findings

Scope of the investigation

The resident has told the landlord and this Service that the subject of the complaint has affected her mental health. The Ombudsman does not doubt these comments and empathises with the resident’s situation, but it is beyond the remit of this Service to determine whether there was a direct link between the landlord’s actions and her health.
The resident has also said she felt she had been discriminated against. While this is acknowledged, the Ombudsman cannot make a finding of discrimination. Whether or not the provisions of the Equality Act 2010 have been adhered to is a matter that may only be decided by a court of law. Any discrimination claim would be better dealt with via a legal claim and is not, therefore, considered further in this report (reflected at paragraph 42(f) of the Scheme).

The resident’s request for a management transfer

The resident’s tenancy agreement describes the property as a 2-bedroom end terrace and states that the maximum number of people allowed to live in it is 4. Paragraph 2.7 of the tenancy agreement relates to overcrowding and states the resident must not overcrowd the property (as defined in the Housing Acts).
The Housing Act 1985 (the Act) describes the standards for statutory overcrowding. Based on the Act, to be overcrowded for room sharing, children under the age of 10 do not count. To be overcrowded either due to the number of rooms in the property or the space standard (size of the rooms), children aged 1 to 9 count as half a person and babies under 1 year old do not count at all. Therefore, this Service is satisfied that the resident’s circumstances for the property would not meet the threshold of being statutorily overcrowded.
It is also important to set the context that there is a shortage of social housing across England. Those competing for homes are those who are homeless, fleeing serious domestic violence and anti-social behaviour, along with those with a medical emergency to move home. Landlords are therefore required to manage their stock effectively and apply their policies and procedures when considering applications.
The landlord’s allocations and lettings policy says:
1. It will take every opportunity to explain its requirements for a successful move, for example the need for a clear rent account, no tenancy breaches, and the current property passing the PVI.
2. Residents may be accepted for an exceptional transfer if their needs cannot be met through the local Choice Based Lettings system.
3. It can refuse a move if the resident owes rent or has recently cleared arrears to be considered for another home.
The landlord’s exceptional transfer procedure (to be used in conjunction with its allocation and lettings policy) also says:
1. The decision to grant an exceptional transfer is at its sole discretion.
2. It may consider an exceptional transfer for overcrowding.
3. Resident applications on the exceptional transfer list are reviewed every 3 months by the Housing Officer, every 6 months by the Area Housing Manager and annually by the Regional Manager of Neighbourhoods.
4. Before a transfer, it needs to consider debt on the rent account, and if there are arrears, it will discuss with the income officer and (attempt to) establish a payment plan with the resident.
It was reasonable for the landlord to wait for supporting evidence after the resident initially contacted it before it added her to its exceptional transfer list. It was also reasonable of the landlord to add the resident to the list in line with its policy having considered her daughter’s ADHD diagnosis and needs, given the household did not meet the threshold for statutory overcrowding.
In line with its allocations and lettings policy, the landlord told the resident of the requirements for a transfer in its letter of July 2021. It also advised her to register and apply for properties through CBLS to improve her chances of moving. This was reasonable as it is not solely the responsibility of the landlord to provide housing options to the resident.
No evidence has been provided to confirm if she bid for any other properties using CBLS between January 2021 and May 2022 before her rent arrears accrued (when she would then not be eligible to bid for properties), a period of approximately 16 months. This could have helped her find an alternative property better suited to her needs without relying solely on the landlord taking action in that regard.
The resident was told she was on the exceptional transfer list on 26 July 2021, but was not actually added to the list until February 2022 due to an error. A further error meant that, although she was on the list in February 2022, she could not match with any properties. There is no evidence to suggest the landlord reviewed her application in line with its policy, which could have flagged these errors.
The resident’s rent account showed that, from January 2021 to May 2022, she did not miss any rent payments. Therefore from July 2021 to May 2022 she was denied consideration for suitable properties for a period of approximately 9 months, which represents a failing. Had a property been available during that time, the resident would not have been in arrears and could have moved.
Due to the landlord changing its criteria, the resident should have been removed from the transfer list in the summer of 2022, and certainly by December 2022. However, it kept her on the list as she had been denied the chance of a move due to its errors. Whilst this did not wholly make up for the time she should have been considered for a transfer, this was a reasonable approach for it to take, and she was offered a transfer.
The landlord staff member that originally contacted the resident to discuss the available property was not aware of the arrears. The letter sent on 26 July 2021 said the resident’s rent account would need to be credit. Both the letter of July 2021 and email of 8 December 2022 also made clear she would need to pay 4 weeks rent in advance on the new property. Despite regular correspondence between the parties between 8 December 2022 and 9 January 2023 neither addressed the arrears or how she would pay 4 weeks rent in advance for the new property. It would have been helpful for the landlord to manage the resident’s expectations at this point that these matters could result in the transfer being declined. Instead, it arranged a PVI which understandably raised the resident’s hopes of a successful transfer.
The landlord’s complaint responses acknowledged that its communication in relation to the PVI could have been clearer. However, the evidence shows multiple communication failures and a lack of clarity between both its own departments, and with the resident which led to her expectations not being managed effectively. These evidently caused her distress and inconvenience and represent a failing, as follows:
1. The resident was told she was put on the exceptional transfer list in July 2021 but she was not added until February 2022. There is no evidence to confirm if the resident was informed of either the error or that she was added to the list in February 2022.
2. The staff member that contacted the resident on 8 December 2022 was not aware of the possession proceedings or arrears. It should also have been made clear that matching with a property did not guarantee a move. The landlord should have reiterated the circumstances in which a management transfer would, or would not, proceed and that senior management have the final say.
3. The landlord told the resident on multiple occasions she needed to “reduce her arrears”, but never explicitly said by how much. On 10 January 2022 it asked for a “significant” payment, but did not set out what that amount was. The resident made what she regarded as a significant payment of £300, but it did not deem it sufficient. It should have been clearer and managed her expectations.
4. The resident was told missed rent payments “would not stop the move” in January 2022 and another member of staff said “any arrears left on the account by the time of the move would be written into the terms of the new agreement.” However there was no guarantee it could do this, and it did not explain to the resident or manage her expectations in this regard.
5. A different staff member escalated the transfer request to senior management, but did not have evidence of when it had been agreed, or by whom, that arrears would be written into a new tenancy agreement.
6. The landlord decided the transfer should be blocked on 30 January 2023, but did not tell the resident in a timely manner which lead to her chasing for updates which caused inconvenience.
7. There is no evidence of when the resident carried out the requirements of the PVI to paint walls and remove flooring. However, it is accepted she acted under the instruction of the landlord. It would have been reasonable to have told the resident to wait before painting and removing flooring until the transfer had been approved.
The landlord used its complaint handling process to acknowledge some of its failings and made some attempt to put things right. It explained why the resident had been refused a transfer, which it was entitled to do under the terms of the tenancy agreement. However, whilst it offered compensation for the poor communication in relation to the PVI, it did not offer compensation for its overall poor handling of her request for an exceptional transfer which included communication failures, failing to manage expectations, and the distress and inconvenience caused by doing so.
Further, the landlord solely blamed the resident for the declined transfer due to the lack of rent payment. It did not acknowledge, or take ownership of the fact, that she had lost out on a potential move for a period of approximately 9 months when she was not in arrears due to failings and errors on its own part.
The landlord acted reasonably in offering to reinstate the resident to the exceptional transfer list (providing her rent arrears reduced to less than 4 weeks rent), despite her no longer meeting its criteria for an exceptional transfer. However, the offer to reinstate her to the list plus £50 compensation failed to fully address the detriment caused and was not proportionate to the failings identified by this Service.
The landlord’s compensation guidance says it can offer goodwill gestures to acknowledge inconvenience and it may seek advice in relation to appropriate compensation from this Service. However its compensation offer was not in line with the Ombudsman’s remedies guidance and the compensation offered does not reflect what this Service considers appropriate to resolve this complaint.
The landlord failed to act in accordance with its policy and meet its obligations on several points. Its overall handling of the request for a management transfer amounts to maladministration and an order is made for it to pay £350 compensation to the resident, to reflect the inconvenience, time and trouble its failings caused. This amount is at the lower end for maladministration under our remedies guidance to reflect the resident’s failure to mitigate her losses by failing to: proactively seek an alternative property via the CBLS; pay rent and maintain payment plans; and provide conclusive evidence that her bank account had been frozen.

Determination

In accordance with paragraph 52 of the Scheme, there was maladministration in relation to the landlord’s handling of the resident’s request for a management transfer.

Orders and recommendations

Orders

Within 4 weeks of the date of this report, the landlord is ordered to:
1. Provide a written apology to the resident for the failings identified in this report.
2. Pay the resident directly £350 for the distress and inconvenience caused by the failings identified (less £50 if this has already been paid).
3. Provide evidence of compliance with the above orders to this Service.

Recommendations

It is recommended that the landlord should consider reviewing its guideline amounts for discretionary payments in its compensation guidance to be more in line with this Service’s Remedies Guidance, found on our website.