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Westminster City Council (202106357)

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REPORT

COMPLAINT 202106357

Westminster City Council

21 June 2022


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 regarding the landlord’s:
    1. Handling of the resident’s transfer application and application for medical priority on its housing register.
    2. Response to the resident’s repair reports, including damage caused by a leak, damp and mould and a pest infestation.
    3. Handling of a decant process.

Jurisdiction

  1. 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.
  2. After carefully considering all the evidence, in accordance with paragraphs 39(a), 39(e) and 39(m) of the Housing Ombudsman Scheme, the following aspects of the complaint sit outside of the Ombudsman’s jurisdiction:
    1. The landlord’s handling of the resident’s transfer application and application for medical priority on its housing register.
    2. The landlord’s response to the resident’s repair reports, including damage to by a leak, damp and mould and a pest infestation.
  3. Paragraph 39(m) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”. In its Stage Two (final stage) response the landlord advised the resident should contact the Local Government and Social Care Ombudsman (LGSCO) if she wished to escalate her complaint further. After bringing her complaint to this Service, the resident was again advised in October 2021 that her concerns should be directed to the LGSCO. This Service is satisfied that the LGSCO is the correct body to consider the complaints regarding the landlord’s handling of her transfer application and application for medical priority on its housing register.
  4. While the resident has advised this Service that she has contacted the LGSCO, they have advised that they do not have an open case. Therefore, it is recommended that the resident contacts them again to clarify the status of her complaint. She can do so via www.lgo.org.uk  
  5. In further correspondence with this Service, the resident also advised that the landlord has not responded to complaints regarding repair issues at her property, including damage caused by a historical leak, damp and mould and pest control. Paragraph 39(a) of the Housing Ombudsman Scheme states that this Service will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a landlord’s complaints procedure. From the information available to this Service, there is no evidence that the issues regarding damp and mould and a pest infestation have been raised with the landlord as a formal complaint and as such, the landlord has not been granted the opportunity to provide a response. These matters will therefore not be considered by this investigation.
  6. Additionally, Paragraph 39(e) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate matters which are not brough to the attention of a landlord as a formal complaint within a reasonable period (usually within six months of the matters arising). While the resident’s original complaint did not raise any concerns about how the landlord responded to the leak and damage it caused, she did refer to the matter in subsequent correspondence. However, it is noted that the leak referred to occurred at the end of 2018 and the resident does not refer to the matter in complaint correspondence with the landlord until February 2021 at the earliest. This is over 12 months after the issue arose and as such, will therefore not be considered by this investigation as the matter was not brought to the landlord’s attention within a reasonable period of time.
  7. Information provided to this investigation shows the resident raised a disrepair claim following the historic leak, which was responded to by the landlord in a separate process to this complaint. Records show the disrepair case was resolved when the resident accepted an amount of compensation via the landlord’s disrepair protocol. There is no evidence the resident raised any concerns with the landlord regarding how the disrepair claim was handled or the amount of compensation it ultimately offered.
  8. However, on consideration of the information available, this investigation will consider the resident’s complaint regarding the landlord’s handling of a proposed decant. This is because the decant process relates to its actions as a landlord and the issue has been considered by it under its complaints procedure and therefore falls under the remit of this Service.

Background and summary of events

Background

  1. The resident is a tenant of a Local Authority. She has resided in her property, a 1-bedroom flat, since 2001.
  2. The landlord operates a two-stage complaints policy, which states it aims to respond to complaints at Stage One within 10 working days and at Stage Two within 20 working days.
  3. Section 5.2.2 of the landlord’s Housing Allocation Scheme (March 2020) notes that “where a tenant is awarded Decant status they will only be offered accommodation larger than their current tenancy size if they are overcrowded by two bedrooms or more”. Section 5.2.4 notes advised that the size of property to be allocated “is determined at the point of registration but will be revised should the size of the property needed decrease/increase”.

Summary of events

  1. Internal landlord correspondence from November 2019 shows that it carried out an inspection at the resident’s property on 18 November 2019 after it was affected by a historic leak. The landlord determined it could “issue works and agree a works start date” but a “decant is not required”. It further concluded the works it planned to issue would “not affect any habitable rooms” and would not “cause any severe disruption and…issues with water and/or welfare services”. It is noted that, during this period, correspondence seen by this Service shows the resident had engaged a solicitor to query the scale of the works required and to insist that a decant to a larger property was necessary.
  2. Subsequently, records show the landlord was unable to gain access to carry out the required works and by October 2020 they had still not been completed. Information available to this investigation shows the landlord wrote to the resident to clarify that it had agreed, on a discretionary basis, to offer a permanent decant to a 1-bedroom property. Landlord correspondence indicates the resident was registered onto the landlord’s decant list on or around 4 November 2020 and she was provided with a bidding number with which to apply for property.
  3. On 6 January 2021, the resident logged a complaint with the landlord. Its record of the call indicates the resident raised concerns over an application for medical priority which had been rejected and that she had been previously registered on the landlord’s overcrowding list for a 2-bedroom property but had been “restricted from bidding or never placed any successful bids”. However, it noted that following a leak at her property, the resident had been advised she was now on a decant list, but she was unhappy she had been told she would only be offered a “like for like” property (i.e. a 1-bedroom property) and she stated this was unsuitable due to her health conditions.
  4. On 20 January 2021, the landlord provided its Stage One complaint response and noted that the resident had raised concerns regarding “the administration of your application to join (our) Housing Register”. The landlord noted the following:
    1. It clarified it would not investigate any decisions it had made (regarding any banding or priority status) via its complaint procedure, as this would need to be addressed via its review process.
    2. It had received a medical assessment form in 2020 but determined that the resident did “not meet (our) criteria on medical grounds”. It noted it had upheld a review requested by the resident and acknowledged her health conditions, but later advised her again that she “did not meet the criteria for medical priority”. It cited relevant sections of its Housing Allocation Scheme to clarify its position and, while it acknowledged the resident was unhappy with its decision, it was “satisfied that policies have been followed correctly”.
    3. Its Central Area Service Manager had submitted a decant form on behalf of the resident on 3 November 2020 for a temporary move as “repair works needed to be caried out at your property and…you could not remain in the property while the repairs were being made”. It registered her on its Decant List on 4 November 2020 for a 1-bedroom, mobility Category 4 property.
    4. After being registered for a decant, the landlord stated it had been advised the resident wished to move permanently and not return to her property once the repair work had been completed. It clarified that “as a decant you are entitled to accommodation that has the same number of bedrooms as your current property” and advised that, once she had moved, she could apply for a transfer to a 2-bedroom property and the landlord was willing to backdate her application to 2002.
    5. It acknowledged the resident was unhappy at only being offered a 1-bedroom property but again clarified it considered her to only be eligible for a like-for-like property under its policy, so it did not uphold her complaint.
  5. On 25 February 2021, the resident advised the landlord she was dissatisfied with its complaint response and asked for her complaint to be escalated. She reiterated her concerns over the size of property she would be offered via the decant process and maintained the landlord had not considered her medical conditions. She stated she would like the landlord to carry out a “review and reconsideration” of her rehousing application “under the medical standard”. 
  6. The landlord provided the resident with a further response at Stage Two of its complaints procedure on 7 May 2021. It clarified that it did not uphold the resident’s complaint and reiterated its positions regarding her housing application and the medical priority assessment. It signposted the resident to the Local Government and Social Care Ombudsman (LGSCO) if she remained unhappy with its response and wished to escalate her complaint further.
  7. The resident contacted this Service in June 2021 and advised she was unhappy with the landlord’s response regarding her housing applications and “repair issues”. In further correspondence with the resident, this Service advised her in October 2021 that the concerns she had raised regarding the landlord’s handling of her housing application and medical priority assessments should be directed to the LGSCO as they sat outside this Service’s jurisdiction.

Assessment and findings

  1. Record show that, following a leak at the resident’s property, the landlord identified a plan of works to repair damage that had been caused. Information seen by this Service indicates that after the works were scheduled in 2019, the resident did not provide the landlord with access to allow it to carry out the repairs. As a result of this, records show that the landlord agreed, on a discretionary basis, to offer the resident a decant move despite being of the opinion it was not necessary as the works required could be carried out with the resident in situ. This was a proactive step for the landlord to take and showed it was willing to be flexible in trying to resolve a difficult situation where there was disagreement between it and the resident.
  2. The landlord’s Area Service Manager wrote to the resident in October 2020 to confirm it would offer her a move to “alternative one bedroom accommodation”. This was in line with its Allocations Policy which states that, when offering a move via a decant, whether on a temporary or permanent basis, a resident will “only be offered accommodation larger than their current tenancy size if they are overcrowded by two bedrooms or more”. It is acknowledged that the resident considers that she is overcrowded at the property, as she has one bedroom while living with her adult son, and it is noted that the landlord has not disputed this, having provided advice in its complaint responses on how she may access its Housing Register to apply for a 2-bedroom property once she has moved. However, it is clear that the resident is not lacking more than one bedroom in her current property and the landlord therefore acted appropriately, and in line with its Allocations Policy, when registering her for a similar size property. it was consistent in advising the resident of its position, from the initial confirmation letter in October 2020 (as per Section 5.2.4 of its Allocations Policy noted above), throughout its complaint responses and in all other correspondence seen by this investigation. 
  3. It is also noted that, in its complaint responses, the landlord reiterated that, once she moved to a new property via a decant, it was willing to re-register her on its Housing List for a two-bedroom property and would backdate her application to her previous tenancy start date so she would not be at a disadvantage and lose any priority date. This was a reasonable step for the landlord to take and, in the Ombudsman’s opinion, indicated the landlord was seeking to treat the resident fairly and ensure she was not left worse off at the end of any resolution it offered.

Determination (decision)

  1. In accordance with Paragraph 55 of the Housing Ombudsman Scheme, there was no maladministration by the landlord regarding its handling of a decant process.
  2. In accordance with Paragraphs 39(a), (39(e) and 39(m) of the Housing Ombudsman Scheme, the following aspects of the complaint have been determined as being outside of the Ombudsman’s jurisdiction:
    1. The landlord’s handling of the resident’s transfer application and application for medical priority on its housing register.
    2. The landlord’s response to the resident’s repair reports, including damage caused by a leak, damp and mould and a pest infestation.

Reasons

  1. The landlord acted reasonably by agreeing to decant the resident to an alternative property even though it had determined such a move was not necessary. Having used its discretion to offer a decant as a means of resolving the dispute over outstanding repairs, it acted in accordance with its Allocations Policy by registering the resident for a suitable 1-bedroom property, which would be the same size as her current property. It consistently advised the resident of its position both in correspondence with her and during its complaint procedure, and that under its policy, she was only entitled to a move to a “like-for-like” property. It also acted appropriately when offering advice on how she may then re-register on its Housing List for a 2-bedroom property once she had moved and its offer to backdate any subsequent rehousing application she made was both reasonable and proactive.
  2. The resident’s complaints regarding transfer application and an application for medical priority on the landlord housing register fall under the jurisdiction the LGSCO. There is no evidence the resident brought concerns about the landlord’s response to her reports of damage caused by a leak within a reasonable period of the issue occurring and there is no evidence that she brought concerns regarding damp and mould in the property, and a pest infestation, to the landlord as a formal complaint.