Clarion Housing Association Limited (202009303)

REPORT

COMPLAINT 202009303

Clarion Housing Association Limited

4 May 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 is about the landlord’s response to the resident’s:
1. concerns about the designation of her property as a three-bedroom rather than a two-bedroom house.
2. request for a rent refund in view of this.
3. concern that she had raised this issue with the landlord in 2017 but it had not been resolved.
4. claim that she should not be paying the “bedroom tax.”
5. associated complaint.

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 aspects of the complaint are outside of the Ombudsman’s jurisdiction:

The resident’s concern that she had raised this issue with the landlord in 2017 but it had not been resolved.

Paragraph 39(e) of the Scheme states:

“The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising;”.

The resident has said that she raised concerns about the designation of her property as a three-bedroom rather than a two-bedroom house in 2017. The Ombudsman has a record of communication from the resident to our Service in 2017 which did not progress to the investigation stage of our process. There is no evidence to confirm that this matter was actively pursued as a complaint with the landlord nor the Ombudsman in 2017, or that the complaint completed the landlord’s internal complaints procedure at that time. As such, the Ombudsman will only consider events six months before the formal complaint was raised on 25 August 2020 in this report.

The resident’s claim that she should not be paying the “bedroom tax”.

Paragraph 39(m) of the Scheme states:

“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.

This aspect of the resident’s complaint is outside the Housing Ombudsman’s jurisdiction to consider as it is better suited for the Local Government and Social Care Ombudsman (LGSCO). The resident has expressed concern that she has paid the “bedroom tax” as the landlord has identified her property as a three-bedroom house and she had a spare room after a member of her household moved out. If the resident wishes to contest the bedroom tax on the basis that the room classed as the third bedroom is too small to be regarded as a bedroom, she may wish to raise a complaint to the local authority’s benefits office and ultimately approach the LGSCO about this matter. This is because the LGSCO can look at complaints about local authority’s activities (aside from their responsibilities as social landlords), including complaints about benefits.

The resident’s request for a rent refund

Paragraph 39(g) of the Scheme states:

“The Ombudsman will not investigate 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 and wants this to be backdated to when she first moved into the property, twenty years ago. 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 in relation to how to proceed with a case if she wishes to pursue the matter further.
It is outside the Ombudsman’s remit to order the landlord to refund any rent or arrange for any rent payments made due to the “bedroom tax” to be refunded. However we can look at the landlord’s communication with the resident about the 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 an assured tenant of the landlord. The tenancy agreement states that the property is a three-bedroom house.
On 15 June 2020 the resident raised a complaint with the landlord over the phone. She advised that she had been charged for a three-bedroom house for 20 years when the property should only be considered a two-bedroom property. She explained that the local authority’s Valuation Office confirmed that the property is a two–bedroomed house for council tax purposes and that she had been calling the landlord every month to follow up on this matter. She was upset to learn that no formal complaint had been logged previously as she had asked for this to be raised on past phone calls.
The landlord issued its stage one complaint response to the resident on 25 August 2020 and advised the following:
1. The landlord noted that the resident had called each month since January 2020 and was promised call-backs, although she did not receive any. The landlord listened to the calls and found that call-backs were raised on each occasion, but these had been sent to the wrong department. These requests were sent back to its contact centre at the time, requesting that they were sent to the correct department, but this did not happen.
2. The landlord apologised that the resident had spent six months calling to request the same call-back. It confirmed that it would be providing training to its staff to ensure that in the future these requests are raised to the correct department. It confirmed that it would now be running weekly reports to identify any requests which had been lost to alleviate these issues moving forward. The landlord apologised for any inconvenience caused and noted that this aspect of the resident’s complaint was upheld.
3. It noted that the resident had said that her third bedroom was 47 square feet. and that by law, under the Housing Act 1985, it can only be classed as a bedroom if it is 50 square feet. She had provided information from the Valuation Office which stated that there were two bedrooms at the property and requested someone to attend the property and measure the room in order for the property to be classed as a two-bedroom property. She then wanted any rental payments she had made as a result of the “bedroom tax” to be reimbursed.
4. The landlord explained that it had visited the property on 7 July 2020 and found that the room was 46 square feet. It had sought legal advice on this matter and established that there were no legal requirements for room size in the UK. It quoted the response it received and said, “It is the landlord’s decision to determine what is / what is not a bedroom, and the overcrowding provisions Housing Act 1985 are not relevant for that purpose”.
5. The landlord confirmed that it would not be re-categorising the property as having two bedrooms. It explained that the resident had lived in the property for 20 years and had signed the tenancy agreement which clearly showed the property to be a three-bedroom property. It noted that the Valuation Office had three living rooms recorded (two bedrooms and a living room), which was in conflict with the information the landlord held. It confirmed that it was making enquiries with the Valuation Office to seek confirmation regarding this. It informed the resident that she could escalate her complaint if she remained dissatisfied.
The landlord emailed the Valuation Office on 25 August 2020 and asked it to confirm the source of information it had used in its report as the information was at odds with the information the landlord held on file. The landlord explained that it currently viewed the property as having three bedrooms and a living room. The Valuation Office responded and confirmed that it would need evidence that the landlord was authorised to access information about the resident’s property.
The resident wrote to the landlord on 2 September 2020 to escalate her complaint. She explained the following:
1. She noted that the Valuation Office had stated that the property was a two-bed property and had been since it was built. She explained that the measurements set out on the form she had provided highlighted how the decision had been made. She asked how, if the Valuation Office was the governing body, anyone had challenged that the property was a three-bedroom house.
2. She asked how the landlord could go above the Housing Act 1985 which stated that the room size was too small to be classed as a bedroom. She asked to see any legal documents which showed that the room could be considered as a bedroom. She concluded that this made her tenancy agreement incorrect. She said that she had needed to cut a single bed at the end to fit it into the room and, again, did not feel this room should be classed as a bedroom.
3. She explained that she was dissatisfied with the service she had received and that the overall experience had caused a significant amount of stress.
4. She said that her queries had gone unanswered. She did not feel it was appropriate that the landlord took six months to acknowledge her complaint and did not feel satisfied that this had been resolved. She explained that she had received a call from the landlord to ask whether her complaint was being managed, which led her to believe that the landlord did not know what it was doing. She advised that she was seeking legal advice on the matter and expected a more detailed explanation of the landlord’s findings in its response.
The landlord issued its stage two complaint response to the resident on 13 October 2020 and explained the following:
1. It apologised for the delay in providing its stage one complaint response and explained that this was due to it needing to contact various business areas to ensure its response was accurate. It offered the resident £25 compensation in recognition of this service failure.
2. It maintained its position that there were no legal documents for room sizes, and it was the landlord’s decision to determine what is / what is not a bedroom. It restated that the overcrowding provisions Housing Act 1985 were not relevant for that purpose. As such, it was unable to provide the resident with a legal document regarding the bedrooms at the property. It also noted that the resident had accepted that it was a three-bedroom property when she signed the tenancy agreement, confirming that it was suitable for her family at the time.
3. It explained that the Valuation Office’s information was at odds with the information it held, and it had attempted to discuss this directly, but was not able to do so without the resident’s consent. The landlord confirmed that it would be willing to discuss this matter with them if the resident provided her consent and completed a form it had enclosed.

Assessment and findings

The registration of the resident’s home as a three-bedroom property.

The resident’s tenancy agreement states that the house is a three-bedroom property. The tenancy agreement is a legal document, and the landlord would be expected to refer to such documents when registering the property for any purposes; for example, for any housing–related benefits.
In this case, the resident has stated that the property had been registered incorrectly by the landlord and her house should be considered a two-bedroom property as the third room is too small to be considered a bedroom. The resident has lived at the property for 20 years and has asked the landlord to change this designation now that her children have left home, and she is liable to pay bedroom tax on this spare bedroom. There has been no evidence provided to this Service which suggests that the resident has previously stated that the property was unsuitable for her needs at any stage during her tenancy.
The resident has expressed concern that the landlord has gone above the Housing Act 1985 which stated that the room size was too small to be classed as a bedroom. The landlord has sought legal advice on this matter and was advised that there were no legal requirements for room size and “It is the landlord’s decision to determine what is / what is not a bedroom, and the overcrowding provisions Housing Act 1985 are not relevant for that purpose”.
The landlord has also referred to the government’s technical housing standards – a nationally described space standard which specifies the requirements for the living space of a property when explaining its decision. The nationally described space standard was introduced in 2015 as guidance on the minimum internal space of newly built homes. As the property in question here is not a new build (built after 2015), but rather built around 2000, this guidance would not apply. Furthermore, the guidance is optional, and relates to local authority planning systems. The landlord is not a local authority and does not make planning decisions. The Ombudsman does not find, therefore, that the landlord had any obligations in relation to this guidance.
This Service is not aware of any legal guidance or regulations that relate specifically to room size requirements for a property which is let on a single tenancy agreement and is formed of a single household. The property does not fall within the regulations of a House in Multiple Occupation (HMO) which would require a bedroom to be a minimum of 6.51 square meters. (70 square feet).
It is not unreasonable for the landlord to register this property as a three-bedroom property as this is stated on the tenancy agreement, which is a legal document that the resident has signed. This Service understands that the current circumstances in relation to the amount of rent she has to pay may have caused the resident distress and uncertainty, but ultimately the resident had the opportunity to raise this dispute at any stage during her tenancy. The resident had the opportunity to address this matter at the time, when she realised that a single bed would not fit comfortably inside of the bedroom and there is no evidence to suggest that this had been pursued as a formal complaint sooner.
The landlord has confirmed that it is willing to investigate the discrepancies about the sizing of the resident’s property with the Valuation Office, but it would need the resident to provide authorisation for it to do so. This is reasonable as the Valuation Office would hold confidential information about the resident and her current council tax banding, and the landlord would not be able to proceed without the resident’s consent. The Ombudsman has not been able to investigate this point further as the landlord’s enquiries with the Valuation Office are ongoing and the outcome of these enquiries is not yet known. Therefore, it has not been established at this stage that the landlord should redesignate the property as a two-bedroom house because the Valuation Office has said it has two bedrooms.
In short, there has been no maladministration by the landlord in respect of its response to the resident’s concerns about the designation of her property as a three-bedroom house. The landlord has demonstrated that it has investigated this matter, sought legal advice, and responded appropriately to the resident’s concerns.

The landlord’s handling of the associated complaint.

The landlord’s complaint policy states that if an initial attempt to resolve the query is not achieved, a formal complaint will be recorded and will be investigated. The landlord has a two–stage complaints process. At stage one, the resident should receive a response within ten working days. If the resident remains dissatisfied, they can escalate their complaint to stage two. At stage two the resident should receive a response within 20 working days. If there is likely to be a delay at any stage, the landlord should contact the resident to provide an update and an expected resolution date.
In this case, the resident’s complaint was raised as a formal complaint on 15 June 2020, although the resident has advised that she had been attempting to raise this for around six months. The landlord provided its stage one response on 25 August 2020. The landlord has acknowledged that its response was issued outside of its published timescales and has offered the resident £25 compensation in recognition of this delay.
Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right, and learn from outcomes.
The landlord acted fairly in acknowledging the delay in issuing its stage one complaint response and apologising to the resident. It put things right by explaining the reason why this had happened and offering the resident £25 compensation. The landlord offered compensation that the Ombudsman considers was proportionate to the distress and inconvenience experienced by the resident in relation to this failing.
The landlord also acted fairly in acknowledging that the resident had spent six months calling to request the same call-back which was not in line with its service standards. It demonstrated it had learnt from the resident’s complaint by confirming that it would be providing training to its contact centre staff to ensure that in the future, any requests are raised to the correct department. It also confirmed that it would be running weekly reports to identify any requests which had been lost. In this instance, however, the landlord’s apology was not sufficient in view of the length of time the resident was waiting for a response and the inconvenience this caused her. This service failure warrants financial compensation.
The landlord has not acted in line with its compensation policy which gives examples of the level of compensation which should be awarded to a resident for various failings. It states that £100 should be offered for six months of repeated failure to reply to letters or calls. The landlord has not offered the resident this amount of compensation and has therefore not acted appropriately in this case.
For the reasons set out above, there has been service failure by the landlord in respect of its handling of the associated complaint and overall offer of compensation. The measures taken by the landlord to redress what went wrong were not proportionate to the impact that its failures had on the resident. In view of this, the landlord should pay the resident £100 for the distress caused by its failure to respond to her phone calls over a significant time period, as stated in its compensation policy. The landlord should also offer further compensation to the resident in recognition of the additional inconvenience caused by its failure to act in line with its compensation policy prior to the involvement of this Service.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s concerns about the designation of her property as a three-bedroom house.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the associated complaint.

Reasons

The landlord has appropriately investigated the resident’s concerns and sought legal advice to provide an accurate response. The landlord has provided a satisfactory explanation as to why it would not be re-categorising the property as a two-bedroom house. It has also said that it would be willing to discuss any discrepancy with the Valuation Office but would need the resident’s consent to do so.
The landlord has taken steps to acknowledge the delay in providing its stage one complaint response and sought to put this right by offering the resident £25 compensation. Whilst it has acknowledged that it had not met its service standards and had failed to call the resident back for a period of six months, it has not offered suitable redress for this aspect of the resident’s complaint nor acted in line with its compensation policy. The landlord should pay the resident an additional £150 compensation for the inconvenience caused by these errors.

Orders and recommendations

The Ombudsman orders that the following actions take place within four weeks:
1. The landlord is to pay the resident £150 in recognition of the inconvenience and distress caused by its failure to communicate with the resident over a significant period of time and failure to act in line with its compensation policy.
2. The landlord is to pay the resident £25 as previously offered in recognition of the delay in providing its stage one response, if it has not already done so.