Hastoe Housing Association Limited (202113581)

REPORT

COMPLAINT 202113581

Hastoe Housing Association Limited

6 June 2023 (amended at review)

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:
1. handling of a management move;
2. handling of reports of unsatisfactory staff conduct;
3. complaint handling, and;
4. record keeping.

Background

The property is a two bedroom, second floor flat. The property was accessible via a metal staircase of 37 steps. The resident requested a management move some time before 2018, on the basis that their home was overcrowded. In December 2018, the resident underwent heart surgery. On 13 December 2018, the resident’s family sent medical evidence to the landlord which explained that when the resident was discharged, they would be unlikely to be able to access the property.
By October 2019, the resident was preparing to move into a new property through an internal management transfer. The property was expected to become vacant in November 2019, however the move fell through. Shortly thereafter, the landlord made a commitment to move the resident into the “next available three bedroom property”. It repeated this in writing on 21 February 2020. There was an understanding that this property had to be located within the immediate area in order to meet the resident’s care needs. The resident understood that this limited the number of properties which were available.
Throughout 2020, the resident wrote to the landlord on a number of occasions (for example in an email dated on 16 July 2020). The resident informed the landlord that conditions of overcrowding in the property, and the associated health risks to the resident, were worsening with time. The landlord explained that it intended to stand by its commitment of 21 February 2020.
On 14 September 2021, the landlord wrote to the resident; it now needed medical evidence to support the move. The landlord informed the resident that it had identified structural issues at a nearby tower block, whose residents would now be prioritised for a management move, over the resident, as there was a risk to life.
On 16 September 2021, the resident complained to the landlord, saying that sufficient medical evidence had already been provided, which it had used previously to support the move in 2019. The resident complained that the decision making process the landlord used was unclear and inconsistent, and requested clarity. The resident reiterated that they had been promised priority for the next property. The resident also complained about the conduct of staff members in a recent meeting.
On 30 September 2021, the landlord issued its stage one response. The landlord stated that no suitable properties had become available and that the allegations into staff conduct would be dealt with internally. The landlord stated that it could not assess the previous decisions it made as it had kept no records. It reiterated that the resident would no longer have priority for a move. On 13 October 2021, the resident escalated the complaint, unhappy that the landlord could not account for its decision making processes, and that it had not dealt with the complaint about staff conduct appropriately. The property the resident was interested in was now being offered to somebody else, which the resident felt was unfair.
On 5 November 2021, the landlord issued its stage two response, saying that despite the large amount of medical information provided, it was unable to assess what the resident’s housing requirements were. It explained this was due to the landlord not employing staff with specialist medical knowledge. The landlord said that it required a copy of an Occupational Therapy (OT) report to support a management move and suggested the resident register for a mutual exchange. After investigating the complaint, it found failings in its procedures for transferring existing residents. It offered £250 compensation for this failing and £50 in respect of a complaint handling error.
On 12 November 2021, the resident contacted this Service. In April 2022, the resident was moved to a three bedroom property which currently meets their medical needs.

Assessment and findings

Scope

Paragraph 42 (c) of the Housing Ombudsman Scheme states that “the Ombudsman may not consider complaints which 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”. However, it has been assessed that until the landlord wrote to the resident on 14 September 2021, the resident may not have realised that they had reason to complain. This Service is also of the view that a number of the resident’s emails to the landlord throughout 2020 constituted clear expressions of dissatisfaction, and thus should have been dealt with by the landlord under the complaints procedure. For this reason, the Ombudsman feels it is appropriate to assess events from January 2020 onwards in this case.

Handling of a management move

On 14 September 2021, the landlord wrote to the resident explaining that despite its earlier written commitments, the resident would no longer have priority for the first available three bedroom property, due a lack of medical evidence, and other tenants now taking priority.
The evidence shows that the resident had sent an overwhelming amount of medical evidence to the landlord prior to this date. The landlord had given no indication at any point that the evidence provided was not sufficient. The landlord also knew that there was cause to investigate claims that the living situation was causing a risk to life at the resident’s property. The resident was concerned that their life may be at risk due to cardiac alarms being triggered when the resident accessed the property. The resident’s doctor and immediate family wrote to the landlord, explaining that the resident was at risk of taking their own life due in part to the current living situation. The landlord had therefore been informed of two separate potential threats which it had a duty to investigate as early as 16 July 2020. It did not reply to email sent on 16 July 2020.
In later correspondence with this Service however, the landlord asserted that it did not believe there to be a threat to life at the resident’s property. The landlord explained that “evidence of the medical condition from the doctor and the occupational therapist did not advise this. If it did advise this, we would have rehoused [the resident] and their family prior to the residents at [tower block] as [the resident] had been waiting longer.” The OT report referred to however was not submitted to the landlord until November 2021, approximately 18 months after it first had cause to investigate, and two months after the decision to prioritise the tower block residents appears to have been made.
The landlord said it did not have staff qualified to make medical decisions, therefore it would not have been appropriate for the landlord asses if a threat to life was present. For the same reason, this is not an assessment that the Ombudsman can make either. However, the evidence shows that the landlord was in possession of enough information to suggest that it had a duty to investigate the risks posed to the resident. There is no evidence that the landlord conducted an investigation or responded appropriately to these concerns on any of the occasions they were raised. The landlord should have taken action in response to the concerns raised by the resident, such as by completing a risk assessment, requesting an OT report (as soon as it had established that it did not possess one), or exploring if any adaptations could be made to the property. The landlord instead replied on most occasions to these concerns by reiterating that no suitable properties were available. On some occasions, it did not respond.
The landlord has more recently explained to this Service its process for assessing which properties were suitable for residents with health needs. This was to ask the resident to provide information about their medical condition and impact on housing needs from a doctor or an occupational therapist. The landlord explained that in this case although it had doctors’ letters, these did not contain enough information. If this was the case, it is unclear why the landlord made the earlier commitment to move the resident into the “next available three bedroom property”. The landlord should have ensured it possessed sufficient evidence before making written commitments to prioritise the resident’s move. The landlord therefore did not follow its process and created unnecessary delays, stress and inconvenience for the resident.
Further, it did not request an OT report from the resident until November 2021, despite having multiple opportunities to do so. This deprived the resident of the opportunity to evidence a need for a move and thereby be prioritised ahead of residents of the nearby tower block.
There are contradictions in the landlord’s approach to medical assessments highlighted in this case. For example, it explained that it was not able to assess the needs of the resident without an OT report, because none of its staff were medically qualified. However, in an email to the resident’s MP on 9 September 2021, the landlord explained that a property the resident was interested in was not suitable as it had stairs. There was an inconsistency in the landlord’s process here. The landlord did not contact the resident to clarify the resident’s needs. If the resident had been consulted about this decision earlier, the resident may have explained that they did believe the property to be suitable. The landlord would also have been aware that a property with internal stairs may have been suitable with the installation of adjustments.
The evidence shows that the way the landlord handled the request for a move caused significant stress and frustration for the resident. The letter sent to the resident on 14 September 2021 was understandably extremely distressing. Because the medical evidence submitted had been understood to be sufficient to support the move, and a written promise had already been made, the resident felt conditions were being applied retrospectively; the goalposts were being moved.
On 5 November 2021, the landlord specifically requested an OT report to support the move, as part of its stage two response. This is the first reference made by the landlord to an OT report since December 2018. The landlord did not provide advice on how to obtain a report or offer to arrange one. The resident wanted to acquire the report as soon as possible in order to prevent any further delays. They found that the waiting list through the NHS would be too long and felt that they needed instead to use a private provider, at a cost of £450. Had the landlord raised the need for an OT assessment sooner, the resident may not have felt the need to do so.
The request for more evidence to support the move delayed the resident’s application. The timing of the request, which coincided with the need to decant nearby residents, may not have been intentional, but understandably caused deep upset to the resident and significantly damaged the trust between resident and landlord. The impact on the resident was exacerbated due to the written assurance of priority to move he had been given. This promise had no stipulations or caveats attached. The landlord had previously explained to the resident that they may be waiting for “a considerable time”, however there were no other attempts made to manage the expectations of the resident. The landlord should have known that a promise of this nature could need to change in the event of unforeseen circumstances. It was therefore wrong to make this promise in the first place, which the landlord has since acknowledged.
Given the resident’s ongoing mental health crisis and living situation at the time, which was made worse due to overcrowding, the landlord should have expected that this letter would potentially be very distressing. The Social Housing Regulator’s Tenant Involvement and Empowerment Standard requires registered providers to “treat all tenants with fairness and respect” and “demonstrate that they understand the different needs of tenants, including in relation to the equality strands and tenants with additional support needs” with a specific expectation that providers will “demonstrate how they respond to those needs in the way they provide services and communicate with tenants”. Therefore, the landlord should have found a more appropriate and sensitive way to convey this decision, such as to invite the resident to a face to face meeting.
In the stage two response issued on 5 November 2021, the landlord identified that making this promise showed a failing in procedure, and offered £250 compensation in respect of this failing. The landlord was right to acknowledge this, however it had opportunity to identify this failing earlier, for example when drafting the letter it sent to the resident on 14 September 2021. No remedy for the time and trouble the resident went to in order to put it right was offered.
The landlord also failed to utilise its policies effectively. Its allocations policy states that “we do not keep a transfer list and we expect most of our tenants who need to move will do so through the relevant local authority’s CBL (Choice Based Lettings) scheme or housing register”. This investigation has seen multiple occasions where the landlord has signposted the resident to this, alongside making the resident aware about mutual exchanges. The resident was not able to access the local authority’s housing register for reasons external to this investigation. The landlord was made aware of this, but did not offer to support the resident’s attempts to join the register until November 2021. The landlord also failed to assess if any adaptations could be made to the property to improve the situation until 23 November 2021.
The landlord has a duty to ensure it is taking appropriate action when overcrowding is identified. The Housing Act 1985 sets out the landlord’s obligations. For example, the landlord is required to notify the local authority within seven days of identifying that the property is overcrowded, under section 333 of the Housing Act 1985. This Service has seen no evidence that the landlord had done this.
When asked to provide details of the process it follows when it identifies that one of its properties is overcrowded, it explained that it takes no action unless a move is requested by the resident. In the event the resident requests a move, it “advises the resident to apply to the local authority” and provides information about mutual exchanges. The Ombudsman acknowledges that overcrowding is becoming a growing problem, due in part to limited social housing stocks which landlords are often limited in their ability to effectively manage. However, it is evident from this response that the landlord did not have appropriate measures in place in order to ensure that it tackles overcrowding to the best of its ability and complies with its obligations under section 331 of the Housing Act (1985). The landlord explained that it “doesn’t provide internal transfers for households requiring rehousing solely as a result of overcrowding as [it] would never be able to meet this demand based on stock numbers in any one area.” It is understandable that the landlord has limited housing stock and needs to make difficult allocation decisions based on need. However, this statement is in direct with the landlord’s own allocations policy, which states that “tenants whose circumstances have changed (for example – Household composition or health reasons), may apply for a transfer to a particular vacancy.” Further to the landlord’s own policies, in view of its legal obligation to minimise instances of overcrowding, it is not reasonable to reject an internal transfer on these grounds. This is why many landlords have an allocations policy which contains provision for a formal, fair and transparent system of deciding levels of priority for internal transfer requests. These levels of priority are sometimes referred to as “banding” and are helpful to ensuring those with the highest need are prioritised first. The landlord is right to suggest that it cannot move residents into properties which it does not possess, however it must be able to demonstrate that its decisions regarding who to move internally, and when to move them, are fair, reasonable and evidence based. The landlord is not required to have such a policy; however it is the opinion of this Service that had such a policy been in place and followed in this case, many of the failings identified, and adverse effect experienced by the resident, may have been avoided.
The landlord’s own lettings policy states that “children of the opposite sex should not be expected to share a bedroom whatever their ages”. Four children of different sexes were sharing one bedroom in the resident’s property and therefore a decision not to accept a management transfer based on these grounds alone would not have been in line with the policy. The landlord may feel that its lettings policy in this instance applies only to new allocations or applications. However, it would not be fair if such a policy were interpreted in this way. It is the Ombudsman’s view that there should be consistency in what living conditions are viewed as acceptable by the landlord, regardless of whether a resident is a new applicant or an existing tenant.
The landlord’s allocations policy provides little guidance for managing transfer requests. It puts most of the responsibility on the resident and the local authority. Whilst this is not uncommon, there is no consideration in the policy for residents who, such as in this case, cannot access the local authority housing register. The allocations policy also makes only one reference to transfer requests made on medical grounds; the policy contains no reference to OT reports or other medical evidence being required. As such, staff in this case had to use their own judgement to make decisions, which led to contradictory outcomes. The resident asked for insight into the decision making process used at various points in the transfer process. The landlord explained that it could not justify many of its decisions, as the staff members involved had since left the organisation. Decisions made by the landlord were often on an ad-hoc basis and inconsistent with one another. The processes were unclear, unnecessarily confusing and caused uncertainty for residents. There were no mechanisms in place to manage the expectations of residents or to review decisions to ensure fairness and consistency.
Following this complaint, the landlord said that it had updated its procedures to ensure that any resident accepted as needing an internal transfer is properly recorded and that applications accepted are reviewed on an annual basis. In the event of there being more than one resident on a scheme requiring a transfer, it will deal with these in date order unless it was evident that a particular applicant had a more pressing need to move, for example a risk to life. This is a considered and appropriate response to the issues highlighted in this report and if this process had been adopted earlier, would likely have led to the resident going through a fairer and more transparent process. However, this change in policy does not go far enough. For example, no provision has been made for scenarios whereby two or more residents may wish to move, both of whom are experiencing a threat to life. The landlord must be able to take a consistent approach to explain who would get priority in such a situation, and why. The landlord did not provide the updated policies and procedures to this investigation. In addition to this, the landlord did not identify a potential threat to life which may have been present in this case. There is no evidence to suggest that would have been different under this new procedure.
Consideration for the difficult position the landlord was in has been given and it is acknowledged that the landlord cannot facilitate moves to properties which do not exist. However, in conclusion, the landlord’s approach to the handling of the transfer request was inconsistent and confusing. The landlord made promises that it should have known it may not be able to keep and later found itself in the position of needing to rescind that promise, causing great distress to the resident. It also had cause to investigate a potential threat to life at the property, which it failed to act upon. As such, there was severe maladministration with regards to the landlord’s handling of the request for a management move. The actions it has taken in response to the complaint do not go far enough to ‘put things right’ or ensure that a repeat of the failings identified here are avoided in future.

Staff Conduct

The resident complained about the conduct of a member of staff in a face to face meeting on 8 September 2021. The resident alleged that the staff member had been “angry, abrupt and offensive”; the resident had found this experience to be “stressful, upsetting and embarrassing”. The resident wanted action to be taken. This Service cannot assess the events of 8 September 2021, because no recordings or other evidence of the meeting are available. However, this investigation will assess the actions the landlord took in response to the resident’s complaint.
In the landlord’s stage one response of 30 September 2021, it explained that a senior staff member would speak with the staff members in question. The resident was dissatisfied and cited this as one of the reasons that the complaint remained unresolved and should be escalated to stage two. The landlord did not respond to this element in its stage two response. The evidence shows that a conversation did take place, in which it was explained that the staff member had not been expecting the residents to turn up at the office, as a colleague had failed to notify them. There is no evidence that any further investigations or actions were taken in relation to this matter.
The Ombudsman would not expect the landlord to share confidential information relating to an individual’s employment or disciplinary proceedings with a resident. However, it would also expect the landlord to explain this in order to properly manage expectations. The Ombudsman would also expect the resident’s concerns to be addressed more robustly than they were in this instance. The impact that the resident described this meeting having on them was not addressed.
Throughout 2020, the landlord had been repeatedly made aware, including in a doctors letter, that the resident had been suicidal and suffering from depression, partially as a result of their housing situation. It is therefore particularly unreasonable that the landlord was dismissive of the complaint and that more was not done to reassure the resident their concerns were being taken seriously.
In conclusion, the landlord’s inability to prove that it had shown due concern and taken reasonable steps to investigate the resident’s complaint served to further damage the landlord/resident relationship. The landlord failed to provide evidence that it had conducted a satisfactory investigation into this element of the complaint. As such, there was maladministration in the landlord’s handling of reports about staff conduct.

Complaint handling

On 17 September, the landlord acknowledged the resident’s stage one complaint, but sent it to the resident’s daughter by mistake. The resident complained that this had caused their daughter “immense distress”. The landlord apologised for this in its stage two response and offered £50 compensation as a result. The evidence shows that the landlord took steps to investigate what had happened and ensure there would be no repeat of this situation. The Ombudsman’s remedies guidance states that incidents of service failure where the impact on the resident lasted for a short duration and which may not have significantly affected the overall outcome, the recommended level of redress is £50-£100. Therefore, the landlord responded appropriately in putting things right and offered reasonable redress in respect of this element of the complaint.
The resident was unhappy that the staff member who issued the stage two response may also have been responsible for making the decision to prioritise the residents of the tower block ahead of the resident. The resident was concerned that the conflict of interest they perceived had directly contributed to the outcome of the complaint. The resident raised this with the landlord on 17 November 2021. The landlord did not respond.
This Service has not been able to establish if there was a conflict of interest. However, the Ombudsman’s Complaint Handling Code (the Code), which the landlord must abide by, states that the complaint handler must take measures to address any actual or perceived conflict of interest. It also states that all elements of a resident’s complaint must be acknowledged and responded to. This is an important part of reassuring residents and fostering trust between both parties; it is vital for effective complaint resolution that residents have confidence in the complaints procedure.
The Code defines a complaint as a “clear expression of dissatisfaction, however expressed”. There was a pattern throughout 2020 and beyond of the landlord failing to identify clear expressions of dissatisfaction made by the resident as complaints. In the Ombudsman’s opinion, a number of emails sent by the resident between 7 January 2020 and 14 August 2020 should have been raised through the complaints procedure. It was not until September 2021, that the resident’s concerns were accepted through the formal complaints process. Had this been done sooner, the shortcomings in the landlord’s procedures may have been identified sooner. The landlord may have identified the need for more medical evidence and been in a position to make an informed decision in September 2021.
There were other instances where the landlord failed to respond to an element of the resident’s complaint. For example, the landlord also failed to respond to the element of the resident’s stage two escalation that they were unhappy with the outcome into their complaint about staff conduct.
There were also instances where the landlord’s remedies were inadequate. In the stage two response issued on 5 November 2021, it offered £250 in respect of its procedural failures in its handling of the management move. The evidence shows that the resident had written to the landlord frequently throughout that time, conveying high levels of distress. As such, the impact when told the promise to move would not be honoured, was significant. The Ombudsman’s remedies guidance states that where there has been “significant physical or emotional impact” on a resident, the level of redress recommended should be in the region of £600-£1000. As such, the landlord did not appropriately calculate the compensation offer which may have been appropriate to make in this circumstance.
The stage two response also stated that there was “limited housing in the area, so you may find a move more quickly by registering for a mutual exchange [or] apply to the local authority to join the housing register”. Whilst this advice may usually be correct, internal emails show that the landlord knew the resident was unable to access the local authority register and was yet to offer the resident any support in its application to the local authority. As such, this was not appropriate guidance to issue and will have understandably caused further frustration for the resident.
In conclusion, there was maladministration in the landlord’s complaint handling.

Record Keeping

It is the responsibility of the landlord to keep and maintain accurate records. The landlord should be able to provide a clear rationale for the decisions it makes, such as by demonstrating which policies and procedures were followed. In instances where a bespoke approach is taken, clear reasoning for this should be documented and the evidence used to inform the approach retained.
In September 2021, the resident made a number of requests for information to the landlord. The resident wanted to know why certain decisions regarding their management move had been made, upon what evidence they had been based on, and why some of those decisions had changed without explanation. In its stage one response, the landlord stated that it “cannot confirm why the management move was agreed in 2020 because all of the staff members who were involved making this decision have subsequently left”. This led to a number of unanswered questions remaining outstanding at the end of the complaints process, including the basis upon which the original property was originally offered to the resident and the decision making process it followed. The resident also wanted to know why they had been deemed priority for a move without an OT report, and what professional assessments the landlord had carried out.
It is not acceptable that such important decisions could not be justified. Staff turnover is to be expected and accounted for in the practices of any organisation; the landlords record keeping policies should account for this.
On 14 September 2021, the landlord requested medical evidence from the resident to support the move. It explained that after checking its records, it “did not have any information regarding [the resident’s] need to move on medical grounds”. This Service has seen comprehensive evidence that this statement was inaccurate. The landlord acknowledged this in its stage two response, clarifying that despite the overwhelming amount of medical evidence it possessed, it was unable to use this evidence to make a decision on property suitability. It is clear from this response that the landlord had failed to review the medical evidence it had on file. The landlord appeared to acknowledge this in its updating of transfer procedures, where it now conducts an annual review of transfer applications. This failing led to the resident feeling that it was necessary to provide an OT report to the landlord without delay, at a cost of £450. This cost may have been avoided with better record keeping and by reviewing the evidence it had on file against what evidence the landlord felt it needed.
Although the landlord has acknowledged many of these failures in record keeping, this Service has seen no evidence that the landlord has reviewed its record keeping procedures or learned from this element of the complaint. There is no evidence to suggest that should there be further staff turnover in the future, incoming staff members would be able to effectively locate and access the records they need to resolve any ongoing complaints. As such, there was maladministration in the landlord’s record keeping.

Determination

Under paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration in the landlord’s handling of a management move.
Under paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlords handling of reports of unsatisfactory staff conduct.
Under paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaints handling.
Under paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s record keeping.

Orders

Within eight weeks, the landlord is to:
1. Apologise to the resident for their experience. This apology should be made in writing by the Chief Executive Officer;
2. Produce a plan to address the record keeping failures highlighted in this report, and share this with the Ombudsman;
3. Produce a plan to address the procedural failures highlighted in this report, in respect of the handling of internal transfer requests, and share this with the Ombudsman. This should make provision for ensuring that decisions which are made are fair, consistent and transparent.
4. Pay the resident a total of £2,100 compensation, made up of the following elements:
  1. £250 in respect of the failures in complaint handling. The £50 already offered should be deducted from this amount, if it has been paid to the resident already.
  2. £400 for the time and trouble the resident went to throughout this process;
  3. £600 for the distress and inconvenience caused;
  4. £750 for the impact that the procedural shortcomings acknowledged by the landlord had on the resident. The £250 already offered should be deducted from this amount, if it has been paid to the resident already.
  5. £100 for the way the landlord handled the reports of unsatisfactory staff conduct.