Together Housing Association Limited (202320354)

REPORT

COMPLAINT 202320354

Together Housing Association Limited

18 April 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 applicant’s:
1. Application for a property.
2. Associated complaints.

Background

The landlord is a housing association. The applicant is not a tenant of the landlord but is considered to have a housing need and is eligible to apply for housing via the area choice-based lettings (CBL) scheme, which includes properties owned by the landlord.
The landlord contacted the applicant on 25 May 2023 and offered her a 2-bedroom property that she had applied for. Following a telephone discussion and text message exchange, the landlord retracted the offer, as it did not consider the applicant able to sustain the tenancy based on her income. The applicant informed the landlord that she wished to make a complaint and appeal the decision.
On 25 May 2023 the landlord confirmed that it had logged the complaint. On the advice of its Tenancy Sustainment Team (TST) it asked the applicant to confirm how long she had been working and whether the Department of Work and Pensions (DWP) considered this ‘gainful employment’ for the purposes of her Universal Credit benefits.
The applicant added to her complaint on 28 May 2023, when she asked the landlord why she had been told she could not afford the property without being able to evidence that she could. She asked why the matter was being handled informally by text message and expressed concern that this could be a breach of data protection. She added that the landlord had not informed her of her right to appeal and she asked that the property be held for her until this was considered and she could evidence affordability.
On 1 June 2023 the landlord emailed the applicant saying she had not provided information to challenge its opinion that the property was unaffordable by the given deadline. It sent a further email the following day asking her to clarify her self-employed income and status by 6 June 2024 or it would re-let the property.
The applicant responded on 4 June 2023, informing the landlord of her monthly income and providing her work contracts. Further discussions took place between the applicant and the TST between 7 and 9 June 2023, in which she confirmed she was classed as being in full-time work for the purposes of her benefit claim. On 9 June 2023 the landlord sent the applicant an email confirming it had withdrawn the offer of the property as it considered it unaffordable. If offered to give her the next available 1-bedroom property.
In the landlord’s stage 1 response of 23 June 2023, it concluded that it had made the right decision in withdrawing the offer. It noted that she had not supplied proof of employment contracts, payslips, or bank statements showing regular income, despite its numerous requests. Based on her being subject to a debt relief order (DRO) and her under-occupation of the property, there was a risk to long term sustainability. It reiterated its offer of a 1-bedroom property.
The applicant provided her bank statement on 30 June 2023 which evidenced her earnings. The landlord confirmed that, based on this, a 2-bedroom property was affordable. It informed her that the property she had been offered had been let, but it would make her a direct offer of the next available 2-bedroom property.
The applicant escalated her complaint to stage 2 on 5 July 2023 and the landlord provided its final response on 10 August 2023. It acknowledged there had been a misunderstanding, in that the applicant had expected the property to be held for her until her complaint was responded to. It also recognised that she felt the information she had provided, in the form of invoices and confirmation of her bank balance, was proof of income. However, it explained that further information was needed and had been requested. It denied that there had been a breach of data protection but acknowledged the text messages had been more informal than should be expected.

Assessment and findings

Landlord’s handling of the application for a property

The landlord has an ‘allocations policy’ which outlines its process for ensuring tenancy sustainability. It notes that, if there is a risk that a potential tenant cannot sustain a tenancy, it has the right to reject the applicant on these grounds. At the point an applicant is being considered for a property, a tenancy sustainability questionnaire is completed, which includes checks on income and expenditure. Any risks identified may involve a referral to the inhouse TST. In some cases, the offer of accommodation may be withdrawn.
The landlord contacted the applicant to offer her the property and completed its tenancy sustainability questionnaire. The details of this conversation and the questionnaire were either not fully recorded, or not provided to this Service. However, the landlord noted, in its internal communications, that the applicant said she had not had regular work and was subject to a DRO. It also stated that she had been in receipt of benefits and intended to move in on her own. The landlord’s policy states applicants can under-occupy a property by 1 bedroom, subject to affordability. For those on benefits having a ‘surplus’ bedroom results in a deduction in entitlement. It was reasonable that the landlord considered these factors a risk in terms of affordability and tenancy sustainability.
However, the landlord was hasty in concluding that the tenancy was unaffordable. The text message exchange shows that the applicant claimed she was working and was due to be paid £3,000 for the past 4-weeks work. The landlord, shortly after, informed her the property was not viable and wished her luck with her search. It offered no detail around the basis for its decision. While the landlord’s policy notes it can withdraw an offer, it also states, where risks are identified, it can make a referral to the inhouse TST for further advice.
The neighbourhood officer explained that she had discussed the case with colleagues prior to withdrawing the offer. However, she did not refer the case to the TST for advice and support and did not ask the applicant for further information about her work status or income. Nor did the landlord inform the applicant she could appeal, which was her right as outlined in the allocations policy. It was only after consulting Citizens Advice that the applicant learned of this and made an appeal request.
In withdrawing the offer without acting on all the available information, giving the applicant the opportunity to provide further information, referring to the TST, and in failing to inform her of her right of appeal, the landlord did not follow its policy or treat the applicant fairly. Losing the offer of a home was distressing, but the applicant was also understandably frustrated at the way this exchange was handled, as evident from her complaint and throughout her communications with the landlord.
The applicant also considered it inappropriate that she had been contacted, and the outcome communicated, by text message. It is reasonable for the landlord to use text messages as one of a range of communication methods but it should take a customer’s communication preferences into account and the records suggest that it did so, corresponding by email going forward.
In its stage 2 response, the landlord acknowledged the informality in its language in the text messages. It rightly demonstrated learning from this failure and assured that future messages would contain clear information, including name, job title and landlord details. The Ombudsman has not seen any evidence that supports the applicant’s concern that the landlord breached data protection. There is no evidence that any personal data was shared in the messages. However, if the applicant wishes to pursue any concerns around a breach of data protection, these would be best directed to the Information Commissioner’s Office.
The landlord decided to withdraw the offer. It is not for the Ombudsman to assess what information is needed for the purposes of an affordability assessment, nor to determine the outcome of one, but it can consider whether the landlord acted according to fair process when doing so. The records demonstrate that it made enquiries with the applicant and she provided some information. It is accepted that, based on the information provided, the landlord still had concerns about affordability when it made its decision.
The landlord said there were gaps in the information provided. In its stage 1 response, it said the applicant had not provided any proof of contract, payslips and bank statements showing regular income, despite its requests. However, the records do not evidence that she was clearly and specifically asked for this information. It is not clear if there were additional conversations that the Ombudsman has not had sight of, in which more specific documentation was requested. The records provided show that the landlord asked her how long she had been in employment and whether the DWP considered her gainfully employed. She provided work invoices/contracts and confirmed she was considered to be in full-time work.
However, in its final response, the landlord acknowledged that the applicant felt the information she had provided was proof of her income. It confirmed that, going forward, it would ensure it was clear to applicants about the process and sustainability assessment it follows and what further information is required. It is, therefore, reasonable to conclude that the landlord was not sufficiently clear with the applicant.
However, the applicant also indicated that she was aware some information was missing. She explained in her correspondence with the TST on 8 June 2023 that she would provide further proof of employment only when it responded to her complaint. The landlord should have been clear that the complaint was being dealt with separate to the appeal, and that the property would only remain on hold whilst it considered her eligibility. Also, despite this, the applicant was providing information, engaging with it, and answering the landlord’s questions. However, it was the responsibility of the applicant to provide whatever further information she had. The landlord is not at fault for making a determination in the absence of any information the applicant had deliberately held back.
In its stage 2 response, the landlord also acknowledged that, going forward, it would provide a timescale for when information should be provided by. It had asked her to provide information by 6 June 2023, which she did. The landlord remained unclear and further conversations were taking place between them. Its email withdrawing the offer of 9 June 2023 came without warning. It caused the resident some confusion, given she had been in communication with the TST only the previous day and had offered for it to speak to her DWP work coach. However, it is understood that, given housing demand and the need to minimise the time properties are void, the landlord needed to progress the let. The landlord did communicate this need to the applicant.
Prior to its decision, there was internal discussion that morning about how to proceed. The TST suggested that the neighbourhood officer could get further information about self-employment from the applicant. The officer’s manager expressed concern and said, if it did proceed, it would be a high risk let and it would need to put an action plan in place.
Ultimately, it was the prerogative of the landlord to make a decision at this juncture, given the competing demands of needing to let the property and investigate the applicant’s eligibility. The Ombudsman does not find fault here, but recognises it exercised a choice. It could have made further enquiries, including contacting the applicant’s DWP coach, or proceeded with safeguards including the action plan. However, it is not clear that this would have provided the required assurance. The resident was subsequently considered able to afford a 2-bedroom property, but this was based on the bank statement she provided 3 weeks later. That she was ultimately deemed eligible only added to her frustration and distress at the decision made, and the loss of the property in question.
In withdrawing the offer, the landlord said it would make her a direct offer of another 1-bedroom property. Considering the revised affordability assessment, it changed this to a 2-bedroom property. This was a reasonable offer, which acknowledged the disappointment and distress felt by the applicant.
To the continued disappointment and frustration of the applicant, the landlord has yet to make her an offer and she has been unsuccessful in applying for properties via the CBL. She raised concerns to the landlord that it had done nothing to house her in a subsequent complaint, in March 2024, noting there were properties available for mutual exchange in her chosen area. The landlord explained that none of its properties have since become available and it is unable to offer properties advertised on mutual exchange sites as these are not necessarily owned by it.
The Ombudsman is satisfied that the landlord’s ongoing inability to offer the applicant a property is due to circumstances outside of its control. It gave appropriate advice in directing the applicant to the council’s housing options team for reassessment of her priority banding, and in encouraging her to consider a wider area. While no fault has been found in the landlord’s subsequent efforts to house the applicant, it is nevertheless the case that her housing status remains a cause of considerable distress for her.
Overall, the Ombudsman considers there were failings in the way the landlord dealt with the application, which amount to maladministration. Its initial handling of the matter was unprofessional, and it was too hasty in its initial withdrawal of the offer, which caused distress and upset. It also failed to inform the applicant of her right of appeal. While it was right to reconsider her eligibility, it should also have been clearer with her what information was outstanding and how this was to be evidenced. That she felt she had provided sufficient evidence demonstrated the landlord’s lack of clarity.
The landlord went some way in acknowledging these failings in its final response and identified learning. However, it should have gone further and offered an apology and redress in the form of compensation for the distress caused. An offer of £250 is considered appropriate, reflective of its failings, and in line with its compensation policy and this Service’s remedies guidance. It should also ensure applicants are given proper opportunity to demonstrate income before making affordability determinations and should inform them of their right of appeal.

Landlord’s handling of the associated complaints

The applicant emailed the landlord on 25 May 2023, expressing that she wished to complain and appeal the decision to withdraw the property. In its complaint response, the landlord confirmed that this was initially dealt with as a ‘service request’ rather than a formal complaint.
The landlord’s complaints policy identifies service requests as matters it seeks to resolve first time. In this regard, it was reasonable that the landlord considered this as a service request. The applicant required the landlord to act, and in response it progressed with the appeal. It also emailed the applicant on 1 June 2023, when it addressed some of her issues, including why it had made the decision it had and what it required from her going forward.
However, there had been several communications from the applicant in which she was clear that she considered she had made a complaint. She repeatedly asked for a response to her complaint. Given this, it was appropriate that the landlord either logged a formal complaint or engaged with her to explain the difference between a service request and a complaint, and to determine her wishes about how this should be handled.
It ultimately did log a complaint on 5 June 2023. The applicant repeatedly expressed that she expected the property to be held for her until the complaint was responded to. The landlord should have provided further clarity on this point and better managed her expectations. It held the property whilst it considered her appeal, but did not respond to the request that this be the case during her complaint. When the landlord retracted the offer of the property, prior to its formal complaint response, this caused the applicant frustration and surprise.
The landlord’s stage 1 response came on 23 June 2023, 15 working days from the date it had logged the complaint, and 21 working days since the applicant considered the formal complaint made. In either case, the response was delayed. The landlord’s complaints policy, in line with the Ombudsman’s Complaint Handling Code (the Code) requires that complaints are responded to within 10 working days at stage 1. The landlord did not acknowledge or apologise for the delay.
The complaint was escalated on 5 July 2023 and responded to 27 working days later on 10 August 2023. This represented a further delay, which was not acknowledged in the response. The landlord’s policy and the Code require that final responses are provided within 20 working days.
The applicant made a further complaint in March 2024 as she felt the landlord had done nothing more to house her. The landlord refused to log this formerly as it said there had been no service failure. It did, however, engage with the applicant on this matter in subsequent emails. The Ombudsman reminds the landlord that it should log and investigate complaints formerly when new grievances are expressed. A finding of no service failure should be an outcome to a complaint investigation, rather than a reason not to log a complaint in the first instance.
Overall, there were failings in the landlord’s communication around the complaints process and delays in its responses, which it has not acknowledged or addressed. It should also have formerly logged the subsequent complaint. These failings amount to maladministration. The landlord should pay the applicant £100 compensation, reflective of the stress and inconvenience caused in its handling of the complaints. It should also ensure better communication with its customers about how it intends to handle a ‘service request’, or ‘complaint’, seeking agreement where necessary.

Determination

In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the applicant’s:
1. Application for a property.
2. Associated complaints.

Orders and recommendations

Orders

Within 4 weeks of this report the landlord must:
1. Pay the resident £350 compensation (£250 for the distress caused by its handling of the applicant’s application, and £100 for issues in its complaint handling).
2. Implement a clearer procedure, to be followed by staff, which ensures applicants:
  1. can demonstrate the income they state they have before an offer is retracted.
  2. are informed of their right of appeal when an offer is retracted.
  3. are clear about the documentation needed to evidence income or affordability.
3. Ensure that staff have been made aware of the learnings identified in this case about text messages and that communications now contain clear information, including name, job title and landlord details.
4. Ensure better communication with customers about how it intends to handle a ‘service request’, or ‘complaint’, taking into consideration their preferences.
5. Update this Service regarding its compliance with the above orders.

Recommendations

Within 4 weeks of this report the landlord is recommended to:
1. Ensure complaints are formerly logged when a customer expresses dissatisfaction, irrespective of whether it considers there has been a service failure.
2. Review the Code and ensure the requirements are incorporated into its complaints policy.