Walsall Housing Group Limited (202000914)

REPORT

COMPLAINT 202000914

Walsall Housing Group Limited

16 March 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 landlords handling of:
1. The resident’s request to be rehoused, following the birth of her children.
2. The resident’s reports of a faulty lift.

Background and summary of events

Background

The resident began her tenancy as a Fixed Term Assured Shorthold Tenant on 6 March 2017. She became an Assured Tenant on 28 October 2019.
The property is a one-bedroom third floor flat.
The resident gave birth to twins on 3 January 2020.

Legal and policy framework

The Landlord and Tenant Act 1985

Under section 11 of the Landlord and Tenant Act 1985 a landlord is required to keep in repair the structure and exterior ‘of any part of the building’ in which s/he has an estate or interest. As such a landlord’s implied repairing obligations extend beyond the flat (or other dwelling) let to a resident for her/his exclusive possession and includes obligations to repair common parts of the building (such as communal lifts).
Once the landlord has been informed of repairs that are needed, the resident must allow a reasonable time for the work to be done, and liability only arises once the reasonable time has elapsed from the date the notice was served. The length of time will depend on the scale of the work and the effect the disrepair is having. The landlord will not be in breach of its repairing obligation until this time has elapsed.

Tenancy agreement

The landlord has provided this Service with a copy of the tenancy agreement. This outlines both the landlord’s and resident’s obligations under the tenancy and of particular relevance, explains:
1. Residents must not allow their homes to be overcrowded.
2. Residents have a right to have qualifying repairs done in set timescales.
3. The landlord will take reasonable care to keep the lifts and any other common parts in repair and fit for use.

Repairs policy

Similarly, the Ombudsman has reviewed the landlord’s repair policy. This additionally sets out the landlord’s approach to lift repairs, indicating that:
1. Urgent repairs, those that cause serious inconvenience, will be completed within three working days.

Allocations policy

The landlord has also shared a copy of its allocations policy. This details the landlord’s approach to assessing a resident’s housing need and allocating stock. The Ombudsman notes:
1. Applicants are allocated to one of three bands within the allocation scheme. Applicants with Gold and Silver Bands have reasonable preference within the scheme, with Gold having the highest priority. Applicants in the Bronze band are deemed to be adequately housed.
2. Gold bands may be awarded to residents where allowing a move will promote better use of existing stock. This includes where a sole tenant or couple, not subject to the under-occupancy charge, release a one-bedroom flat and move to a two-bed flat.
3. Silver bands may be awarded to residents where there is a recognisable housing need. This may be if the property is deficient by one bedroom, under the National Bedroom Standard.
4. Applicants must have at least one dependent child to apply for a house and must be in receipt of child benefit for the dependent child.
5. Reasonable consideration is given to applicants 28 weeks pregnant with a child (or children).
This policy uses the Housing (Overcrowding) Bill as a guide for good practice and the standard by which overcrowding levels are measured, for the purpose of awarding ‘reasonable preference’. Applicants claiming to be overcrowded are assessed against the Bedroom Standard.
The policy shows that under the Bedroom Standard, a household with two children under the age of 10 will need one bedroom for the parents and one bedroom for the children, regardless of sex.

Scope

The resident has suggested that as a result of the landlord’s handling of her situation, she suffered with sleepless nights, anxiety, dermatitis induced by stress, and her mental health worsened. Whilst this may be the case, it is beyond the expertise of this Service to reasonably determine a causal link between the landlord’s actions and the deterioration of the tenant’s health. The Ombudsman has therefore made no comments in relation to this. Should the resident wish to pursue this matter, legal advice will need to be sought.
The Ombudsman has also made note of the resident’s report relating to the breakdown of her boiler, on 22 May 2020. This too has not been considered within this report as the Ombudsman cannot see that the resident brought this to the landlord’s attention as an official complaint. As per paragraph 39(a) of the Housing Ombudsman Scheme, the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted the landlord’s complaints procedure.

Summary of events

In June 2019 the resident updated her housing register form to reflect a change in circumstance. She informed the landlord she was pregnant (with twins) and would therefore require more space. The landlord noted that it would acknowledge the resident’s pregnancy at 28 weeks and then the children once they were born, at which time, a Silver Band would be awarded. It appears a Silver Band was applied to the resident’s housing application on 31 October 2019.
The landlord’s call records show that on 20 February 2020 the landlord took a call from the resident. Within this, the landlord advised the resident that she needed to continuously bid on properties if she wished to move to more suitable accommodation. It was explained that as she was only looking in a certain area, this could impact the speed in which she would find a property.
On 21 February 2020 following a discussion with the resident on the previous day, the landlord agreed that the resident would be offered a Gold band for a two-bedroom flat. The resident was advised that if she went for this option, she would not be eligible to bid for houses. The landlord also noted that the lift had been out of service twice that month, but no other incidents had been recorded since January 2019.
On 26 February 2020 the landlord wrote to the resident requesting a copy of the resident’s passport so that the Gold banding could be applied to the resident’s housing applications.
The resident responded on the following day. She asserted that she would provide a copy of her passport once the landlord had confirmed that she would not be discriminated against and could use the Gold band to bid on houses too.
The landlord reiterated, however, that the Gold band would only be given for two-bedroom flats. It explained that this would still ease the resident’s housing situation, enabling her to bid on flats on a lower floor and would remove any issues with getting her children up and down the stairs. The resident was advised that she could then re-register to bid on houses. The gold band would not be awarded until the resident’s passport was received.
In the same chain of emails (on 27 February 2020) the resident advised that the member of staff she had been corresponding with had stopped responding. She asserted nonetheless that she had spoken with her solicitor who had confirmed that it was discrimination to prevent her from bidding on houses with a Gold band. She explained she did not want to move and then re-register to move again.
The Ombudsman can see that on 3 March 2020 the resident obtained a letter from her healthcare service to support her case. It was explained that in the event of the lift breaking, it was unsafe for the resident as she was unable to bring both babies down via the staircase. It was noted that this was having an impact on the resident’s mental health.
On the same day, the resident called the landlord to obtain an update. During this call, the landlord advised the resident that it would not be increasing her banding to gold to make her eligible to bid on houses. This would remain restricted to two-bed flats.
On 12 May 2020 the resident reported that the lift had stopped working. She explained that she had just been out for a walk and on her return, had found that the lift was again out of service. The resident asserted that the lift had now broken several times, on one occasion for five days. She explained how this had impacted her now that she had two small children. She explained that she was now living in a one-bedroom flat with four people and was in the process of taking legal action.
The landlord acknowledged the resident’s repair report on the same day and confirmed that a repair had been raised for the lift. It added that the resident’s housing concerns had been passed to the appropriate team who would be in contact to discuss the situation.
The landlord confirmed for the resident that the lift had been fixed later that day.
On 16 May 2020 the resident submitted a formal complaint. She explained:
1. She was initially informed that she would not be moved from Bronze to Silver banding until she provided proof of her pregnancy at 28 weeks. She explained that she provided this and was then told that she would not be awarded the banding until she had the babies. It was not until the babies were registered and the certificates were sent over that she was put on Silver banding.
2. Several bids were placed however her applications were nowhere near the shortlist.
3. The corridors were narrow with heavy fire doors, making it difficult to use a double pram.
4. The lift had been broken three times since the birth of her children, lasting five days on one occasion. She had to cancel appointments because of this. Carrying the children up four floors was extremely difficult and dangerous during her caesarian recovery period.
5. She required use of both sides of the car to put the children’s car seats in. This was difficult as not everyone parked correctly and within the lines.
6. She had no storage space for the baby’s belongings. No kitchen or bathroom space as these were made for one person, and the bedroom now held four people. She was unable to house two cots due to the lack of space and so her children had to share a cot at five months old. She explained that this was impacting her mental health.
7. A member of the landlord’s staff had visited her property on 10 February 2020 to discuss her situation however following this visit, began to ignore her contact. After speaking with another member of staff it was suggested that she would be offered Gold banding however could only bid on two-bedroom flats and not houses. She explained that while the landlord considered a ground floor flat to be suitable, this would not have eradicated issues with parking and would have limited the properties available to her.

The resident therefore concluded that a three-bedroom house would be most suitable for her needs. As her twins were different genders, they would need separate rooms once they were older.

The landlord acknowledged the resident’s complaint on 21 May 2020 and confirmed that a response would be provided.
On 27 May 2020 the Ombudsman notes that the lift was out of service. The Ombudsman can see that the landlord confirmed for the resident on the same day that an engineer would be on its way to address this. It is unclear when the lift was first reported to the landlord, and whether this was reported by the resident, however the resident explained that she had been advised the repair would take place on the previous day (26 May 2020). She added that she remained dissatisfied that she was not able to bid on a house. She did not feel that the individuals who had dealt with her concerns were taking her seriously.
On 28 May 2020 the resident obtained a further note from the practicing nurse at her Dr’s surgery. The resident’s living situation was reiterated, and it was suggested that:
1. The resident’s boyfriend’s health condition had worsened over the past six months. The flat was also very hot due to the overcrowding and this was making his condition worse.
2. The resident’s long-term anxiety problems were starting to become an issue as a result of her living conditions. Carrying heavy loads up and down the stairs had also caused abdominal pains.

The resident has noted that this was shared with the landlord on 2 June 2020.

On 3 June 2020 the landlord wrote to the resident. It stated that it had investigated the resident’s complaint and noted:
1. The resident’s pregnancy was acknowledged on 31 October 2019 and her application was placed in the Silver band to meet her new needs. This allowed her to place bids on two-bedroom flats. At this point the resident had reached 28 weeks in her pregnancy and in line with the Allocation policy, was only eligible to bid on houses when in receipt of child benefit.
2. Once notified of the birth of the resident’s twins in January 2020, her account was updated to reflect her eligibility to bid on properties including two / three bed houses. The landlord noted that the resident’s bids had been for three-bedroom houses however as there were several applicants within this band waiting for this type of property, her position was fairly low.
3. On 21 February 2020 the resident made contact to explain her difficulties. A review was then undertaken and in recognition of the resident’s position, a Gold award under the “best of use stock” circumstance was offered. This was generally reserved for applicants who were not affected by the bedroom tax however in this case it was approved to allow for a quick move to a two-bedroom ground floor flat to meet the resident’s needs.
4. The resident requested, on 3 March 2020, that the Gold award include houses and was advised that the award did not include houses as it would not meet the “best use of stock” criteria. The resident subsequently declined the award.

The landlord explained that the resident’s application still remained in the Silver band, being one bedroom deficient. The resident could remain in this band and continue to bid on two / three-bedroom houses however she would remain in a low position, to ensure fairness to others waiting.

On 6 June 2020 the resident replied to the landlord’s complaint response. She requested that her complaint be escalated as she was not satisfied that the landlord had considered all elements. She explained:
1. She had shared a letter with the landlord from her GP showing that she needed to be in a house with outdoor space due to health reasons. It was confirmed on 2 June 2020 that this letter was being reviewed however she had heard nothing in response.
2. On 3 March 2020 she had shared a letter from her health visitor which also explained her situation. This had not been considered either.
3. The landlord had not considered her issue with parking. She found it extremely difficult to put her children’s car seats in the car if cars were parked too close on either side. She stated communal carparks in flats did not consider her struggle.
4. There were 150 empty houses, according to a member of staff, however she was not being prioritised.
On 17 June 2020 the landlord offered its final response. It explained that it had reviewed the resident’s complaint and was satisfied that a thorough investigation had been undertaken, in line with its Allocation Policy. The landlord noted that correspondence from the resident’s GP had highlighted concerns with
1. The resident’s ability to safely access and evacuate her home if the lift was out of order
2. Overcrowding which contributed to her partner’s respiratory condition; and which impacted her ability to offer safe living arrangements for her children
And it explained:
1. In order to provide swift resolution to resolve the overcrowding, the resident had been offered priority for a move to a two-bedroom ground floor flat. This would have alleviated the above issues and was the quickest and most effective solution whilst remaining fair and consistent to all other customers in how homes were allocated.
2. There had been four lift failures in the past six months and of these, two were resolved on the same day, one on the following day and one six days after being reported. The landlord apologised for this and explained that lift repairs were given priority status and generally repaired on the same day unless parts were required.
3. In relation to parking, the landlord explained that there were 40 spaces for the 40 flats in the Court. It acknowledged that the resident may have experienced difficulty getting her children in and out of the car, however would not uphold a request for rehousing to allow for private parking. Many of its properties did not have off road parking or large enough driveways to enable the resident to lift car seats in and out with ease.

The landlord therefore concluded that while it recognised that the resident’s current condition did not meet her family’s needs, it was satisfied that all elements had been considered and that a fair and reasonable solution had been sought.

Assessment and findings

The resident’s request to be rehoused, following the birth of her children.

In order to ensure that properties are distributed fairly and consistently, the landlord should act in line with its allocations policy and apply a common-sense approach to guarantee that those with the highest priority are housed/rehoused. While it is important to recognise an individual’s specific circumstance and where necessary, to make reasonable adjustments, it is equally important to follow due process. The Ombudsman has considered the landlord’s approach in this case and has concluded that the landlord did this. The Ombudsman is satisfied that the landlord appropriately applied its policy and offered a resolution which was fair and proportionate.
As per the allocations policy, a Silver band should be award to resident’s where there is a recognisable need. This would include a change in circumstance such as the birth of a child (or two) and is acknowledged and given reasonable consideration at 28 weeks of pregnancy. The Ombudsman can see that on 31 October 2019, upon receiving proof of the resident’s pregnancy, the landlord applied the Silver Band to the residents housing register application. It was noted that the resident was one-bedroom deficient and later, upon confirmation that the children had been born and registered, the resident’s eligibility to bid on two / three-bedroom properties (including houses) was updated. This was appropriate. The Ombudsman notes that had the landlord awarded this prior to the birth of the resident’s children, the resident would not have been able to apply for houses, as she needed to have at least one dependent child and be in receipt of child benefit.
In the Ombudsman’s opinion, the landlord also adequately recognised the resident’s housing need on 21 February 2020 and made an acceptable proposal to address the issues she had been faced with. By offering the resident a Gold band, under the “better stock use” criteria, the resident would have been able to secure a two-bedroom, ground floor flat. The Ombudsman recognises that the resident did not feel that this fully met her needs and in her stage one complaint, made this clear. In the Ombudsman’s opinion, however, the landlord’s offer was reasonable, given the circumstance. Gold banding would have given the resident the highest priority for a timely move, and while not to a house, a move to a two-bed would have adequately resolved any concerns regarding space / overcrowding.
The Ombudsman has considered the resident’s assertion that the landlord had treated her unfairly by not enabling her to use this Gold band to bid for a house. The Ombudsman has reviewed the “better stock use” criteria (and the circumstances relevant to this) however, and has found that the policy only enabled the resident to obtain a move into a two-bed flat. The Ombudsman cannot see that an allowance is made [within the policy] for a move to a house under this. It was therefore appropriate for the landlord to explain to the resident that bids on houses did not meet the “best stock use” criteria. It was also reasonable for the landlord to apply its discretion and approve the Gold banding, under this criterion, even though this was reserved for those who were not subject to bedroom tax. In the Ombudsman’s view, this was a fair adjustment to accommodate the resident.
As an applicant in the Silver band, the Ombudsman notes that the resident made several applications for three-bedroom houses but without success. The resident subsequently expressed dissatisfaction that her applications were not being shortlisted. While the Ombudsman appreciates that this was the resident’s ideal housing choice, the Ombudsman is content that the landlord reasonably explained that as there were several others in this band with higher priority, the resident’s position remained fairly low. The Ombudsman can see that this would have been affected by several factors, including the fact that under the Bedroom Standard, a family with two children under the age of 10 would meet the criteria for a two-bedroom property (and be awarded reasonable preference), but not for a three-bed.
On 3 March 2020 and again on 28 May 2020 the resident obtained letters from health professionals to support her requirement for more space. While the landlord failed to acknowledge and respond to this within its stage one response, the Ombudsman is satisfied that an appropriate response was offered at stage two. The landlord explained that it had taken the matters into consideration and highlighted again for the resident that the issues raised would have been alleviated by a priority move to a two-bedroom ground floor flat. In the Ombudsman’s view, this was a fair response. It was also fair for the landlord to advise the resident that it would not make housing allocation choices based on the resident’s parking preferences.
The Ombudsman acknowledges that there would have been some inconvenience in moving property more than once, as the landlord suggested. In the Ombudsman’s view, however, this suggestion did provide some reassurance that the resident would have had the opportunity to secure a house at a later time, while also offering an immediate resolution to overcome the substantial issues raised. This was reasonable.

The resident’s reports of a faulty lift.

As per the obligations set out in the Landlord and Tenant Act 1985, and the landlord’s repair policy, the landlord should take reasonable steps to address issues which have been brought to its attention and which it is responsible for. The resident, however, must also allow a reasonable time for the work to be done and the landlord will not be in breach of its obligations until a reasonable time has elapsed. With this in mind, the Ombudsman has considered the resident’s dissatisfaction with the communal lift and while the Ombudsman recognises the inconvenience this caused her, the Ombudsman cannot see that there was any maladministration.
As confirmed by both the resident and the landlord, there were several occasions in which the lift became unusable. It was explained by the landlord that on these occasions, however, the lift had either been restored to working order on the same day or the following day. The Ombudsman has been unable to verify the two instances in February 2020 in which the lift was out of service. It appears, nonetheless, that on 12 May 2020 and 26/27 May 2020 the lifts were restored with minimal delay. This was appropriate. The Ombudsman is also satisfied that the landlord offered the resident reassurance within its final response that it sought to prioritise lift repairs and undertake them within the same day where possible. This was reasonable particularly as the landlord’s policy (although not specific to lifts) offered up to three working days to undertake urgent repairs.
The landlord confirmed, as raised by the resident, that on one occasion there had been a six-day delay in its repair response. This was inappropriate and exceeded both the priority timescale [later] suggested by the landlord and the timeframe outlined in the landlord’s policy. The Ombudsman is content, however, that an apology in recognition of this. The Ombudsman cannot see that there were any other instances in which the landlord delayed in its repair obligation, this was a reasonable response.
The Ombudsman is also content that in response to the resident’s dissatisfaction with the frequency in which the lift had been out of service and the potential issues it posed for safe entry / evacuation, the resident was offered the opportunity to explore a move to a ground floor flat. This would have removed any ongoing concerns and removed the problem completely.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was:
1. No maladministration in respect of the landlord’s handling of the resident’s request to be rehoused, following the birth of her children.
2. No maladministration in respect of the landlord’s handling of the resident’s reports of a faulty lift.

Reasons

The Ombudsman has arrived at the above determination as:
1. In the Ombudsman’s view, the landlord acted in line with its policy and made a reasonable effort to address the resident’s housing need. The landlord acknowledged the resident’s requirement for more space, and that her living arrangement had become unsuitable, and awarded the resident the highest priority in order to resolve her situation at the earliest opportunity. This was appropriate. The Ombudsman is content that the type of accommodation was fair and in line with the landlord’s policy and is satisfied that this would have been satisfactory in putting right the issues of overcrowding. The Ombudsman acknowledges that the provision of a flat may not have addressed the resident’s parking issues, however the Ombudsman is satisfied with the landlord’s response as it was not obligated to accommodate private parking.
2. While the lift had stopped working on several occasions between January and June 2020, the Ombudsman has only been able to identify one instance in which the landlord failed to undertake the repair within good time. This was appropriately acknowledged by the landlord however, and an apology was offered for this. The Ombudsman does recognise that due to the resident’s circumstance, taking the stairs when the lift was out of service caused great inconvenience and difficulty. In the Ombudsman’s view, as the landlord could not guarantee that the lift would not be met with any service issues in the future, it was reasonable to prioritise the resident for a ground floor flat to resolve this issue.