London Borough of Brent (202100668)

REPORT

COMPLAINT 202100668

Brent Council

27 July 2023

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. Response to the resident’s request to reclassify the property as four–bedroomed for the purpose of benefit calculations.
2. Response to the resident’s request to replace the internal doors, and reports of damp and mould, a broken banister, and pests.
3. Communication with the resident.

Background and summary of events

Background

The resident holds a secure tenancy for a house, which began in 1991. The landlord classifies the house as five-bedroomed. During the course of the tenancy the household make-up has changed, and the resident currently lives at the property with his wife and three other family members. The resident claims housing benefit.
The Welfare Reform Act (2012) set out housing benefit deductions for so-called “spare rooms”, which applied from April 2013. This is commonly known as ‘the bedroom tax’ and means claimants have 14% of their benefit payment deducted for one “spare” bedroom. The intention of the Act was to encourage households to move to smaller properties if they no longer required the property size they currently occupied. Under the calculations, the resident’s household is considered to require a four-bedroomed home.
The landlord is a local authority, and it was therefore also responsible for the administration of the resident’s housing benefit payments.
Universal credit is administered by the department for work and pensions (DWP). When there is a change in their circumstances, housing benefit claimants are required to move onto universal credit.
The landlord’s complaint policy sets out its two-stage process. Stage one complaints are acknowledged within five working days and answered within 20 working days. Stage two complaints are acknowledged within five working days and the investigation is completed within 30 working days.
The landlord’s repair policy sets out the way in which the landlord handles repairs, including:
1. Emergency repairs will be made safe within two hours and rectified within 24 hours.
2. Routine repairs to be completed within 28 days.
The right to repair scheme sets out the timescales local authorities have to carry out qualifying repairs.
The Equality Act 2010 sets out the landlord’s responsibilities, as a public body, to have due regard to the advancement of equality of opportunity between persons who share a protected characteristic, and those who do not. This requires the landlord to ensure it avoids indirect discrimination. Of particular relevance to this case, the landlord is expected to provide access to translated communications where English is not the first or fluent language.

Summary of events

The landlord has explained that a housing benefit restriction was applied from 10 February 2020, after it was notified that one of the adults in the household had moved out. As set out, it was required to apply this restriction by law.
The resident subsequently fell into arrears and appealed this restriction. On 26 June 2020 the housing benefit arm of the landlord wrote to the resident and confirmed it accepted the property was four-bedroomed. It credited the resident’s account for the underpayment from 10 February to 5 July 2020.
The landlord has explained that housing benefit continued to be paid on this basis until 4 April 2021, after which the resident applied for universal credit and his housing benefit claim was stopped.
The resident informed the landlord he could not be paid universal credit until the number of bedrooms in his house was confirmed to the DWP, and he started to accrue arrears.
The landlord’s records show it visited the resident on 20 April 2021 to assess the number of bedrooms in the property, so that it could provide the confirmation the resident had requested. It verbally advised the resident that it considered the second downstairs reception room as a bedroom, even if the resident’s household did not use it as such. The resident emailed the landlord on 25 and 28 April 2021, asking for written confirmation of the outcome of the visit.
The resident contacted the Housing Ombudsman and sought intervention. The Ombudsman passed on the issues the resident had reported on 4 May 2021, and the landlord’s records show it registered a stage one complaint at that point. The resident requested the following actions from the landlord:
1. Deal with damp and mould, which was “detrimental to the health of some family members”.
2. Deal with cockroach and mice infestations.
3. Replace all internal doors, which were 30 years old.
4. Confirm the size of the property to the Department for Work and Pensions (DWP), because the delay in doing so had caused a delay in his benefit payment.
5. Provide a single point of contact, “who preferably speaks Punjabi”.
6. Provide a formal complaint response.
The landlord issued a stage one response. It is not clear which date this was, however the landlord’s records indicate it was on or prior to 1 June 2021. The landlord confirmed the following:
1. It could only progress the matter of the internal doors if the resident gave a reason as to why they were in need of replacement, beyond that of their age.
2. It classified the property as five-bedroomed.
3. The resident’s single point of contact would be his housing officer, and the landlord added that she “unfortunately” did not speak Punjabi.
4. The landlord apologised for any upset and inconvenience caused by its “poor communication” around the matters, and offered the resident £50 compensation.
The landlord’s records show it talked with the resident’s representative on 12 July 2021. It acknowledged the resident’s request for a stage two review and said it would provide a response by 6 August 2021.
On 2 August 2021 the landlord attended the property and measured the rooms, including a dining room, which it said had a window and separate door from the living room, and could therefore be used as a bedroom. The other rooms it measured were listed as the living room, and bedrooms one to four. The resident disputes this assessment, and describes the downstairs as having “a through lounge” without “a partition wall or doors”.
On 5 August the landlord issued a stage two complaint response, which included the additional matter of a broken banister, and confirmed the following:
1. It had identified damp and mould on the bathroom ceiling. The landlord said it would check the extractor fans were on the correct settings, and “overhaul” them as needed. It would decorate the resident’s bathroom as a goodwill gesture and would carry out an inspection of the loft area.
2. The landlord’s contractor reported seeing cockroaches when working on the resident’s boiler, and as a result the landlord arranged for its pest control specialist to attend on 1 and 15 April 2021. No evidence of cockroaches was observed at either visit. The landlord commenced treatment for mice on 26 May 2021 and this was still ongoing, with the most recent visit carried out on 30 July 2021.
3. The landlord would arrange for its surveyor to attend and assess the condition of the internal doors and banister. It would raise any repairs identified during the inspection, and would arrange further pest control if the surveyor identified any cockroach infestation in the door hinges.
4. Regarding the property bedroom classification, the landlord explained that the decision to “assist” the resident “during lockdown” was made “on a discretionary basis”, whilst “it was not feasible for an officer to visit” the resident’s home to verify the size of the bedrooms. The landlord explained the decision on the resident’s universal credit entitlement now sat with the DWP.
5. The landlord advised it would assess whether the property was bigger than the resident required for the number of people in the household, and if it was it would contact the resident to discuss downsizing to a smaller property. It would not take any further recovery action for the arrears the resident owed to the landlord for two months, to allow time for these discussions and for the resident to pursue his universal credit claim. Further, it advised the resident how to make a discretionary housing payment (DHP) claim, should there be a shortfall between the universal credit he received and his rental liability.
6. The landlord noted that the resident had asked “more generally” if it offered “adaptations for disabled, older tenants”, and signposted it to a page of its website, where it said he would find an application form.
7. The landlord provided details of how to refer his complaint to the Ombudsman should he remain dissatisfied with its response.
On 20 August the landlord wrote to the resident to confirm that it classed the property as a five-bedroomed property. It also advised it would contact the resident after 6 September 2021 to discuss downsizing to a smaller property, which it said would additionally assist with the resident’s council tax banding.
The landlord’s records show it contacted the resident in the week of 6 September 2021 to discuss downsizing, and the resident said he needed time to think about it.
The resident has confirmed that the landlord’s contractor identified a cockroach infestation between October to December 2021, and it carried out treatment for this.
The landlord’s records show that on 23 February 2022 the resident was in contact with the landlord. The resident confirmed he would not downsize and reasserted his view that the property was four-bedroomed.
The resident has explained mice droppings were subsequently found under his bath, and this required further treatment by the landlord. This has now been completed.
The Ombudsman has seen photos of the internal doors, which look to be in good repair. The resident has confirmed the landlord replaced the hinges on some of the doors in February 2023.
The resident has explained that he and his wife find the internal doors heavy. After intervention by the Ombudsman, the landlord has agreed to explore the best way of addressing this. This includes consideration of easing and adjusting the door closers and taking relevant advice from an Occupational Therapist at such a time as an assessment has been completed.
The resident confirmed that he reported several separate repairs to the landlord in the time between the landlord’s stage two response and the Ombudsman’s investigation. He has explained that he views several of these as outstanding or not complete, and the Ombudsman has notified the landlord so that it can take appropriate action and communicate its plan of action to resident.
In March 2023 the resident informed the Ombudsman that there is now mould visible in his kitchen, one of the bedrooms and the front room. He has shared photos that show mould on his banisters and in the stairwell. He reports that the landlord has attended and taken photos, but he does not understand what the landlord will now do.
The resident has explained to the Ombudsman that the landlord has replaced the broken banister with a handrail, but he does not consider it secure enough to be safe.

Assessment and findings

The landlord’s response to the resident’s request to reclassify the number of bedrooms in his home

It is not the role of the Ombudsman to make a definitive decision whether the resident’s property is a four or five bedroom property. This can only be determined by the Tribunal or Court which has the power to make a legally binding decision on this matter. The Ombudsman has therefore focussed on the landlord’s handling of the resident’s request to reclassify the number of bedrooms in the property.
With reference to the timing of the complaint regarding the classification of the property, it is recognised that the original tenancy agreement did not specify how many bedrooms the property had and that the resident had cause to question this only once his benefit payment was reduced. In investigating the resident’s complaint, the Ombudsman has considered the reasonableness and appropriateness of the landlord’s handling of the resident’s queries about the number of bedrooms and his subsequent formal complaint.
The landlord acted reasonably in using its discretion during the period of lockdowns, in which the benefit restriction first applied. It is appropriate that it looked to avoid an immediate visit to the property due to the government’s guidance in place at the time and it is recognised that the landlord tried to act reasonably in increasing the level of benefit the resident was in receipt of. However, its communication of 26 June 2020 made no reference to this process, and did not make it clear that this was either a discretionary or temporary decision.
The landlord did not appear to give consideration to using alternative methods of investigation during 2020, such as the possibility of photos, video or measurements supplied by the residents. It chose the avenue of removing the benefit restriction instead of applying DHP to meet the shortfall the restriction created, which appeared to cause confusion to the resident. It is appropriate therefore that the landlord looked to compensate the resident for the confusion its communication around its decision making had caused.
The landlord’s complaint responses provided clear detail of the methodology it used to calculate the occupancy of the property, and it advised the resident of the options open to him, including downsizing and applying for DHP. The landlord’s responses once it was able to visit the property demonstrated its reasonable approach to the matter of the classification, and showed it had learnt from its initial communication around the matter.
In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the 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 as well as our own guidance on remedies.
In this case, the compensation of £50 offered by the landlord was adequate redress for the impact on the resident of its acknowledged poor communication.

The landlord’s response to the resident’s request to replace the internal doors, and reports of damp and mould, a broken banister, and pests.

The landlord is required to keep the internal doors in good repair, but it is not required to replace them after a set period of time.
It was appropriate, therefore, for the landlord to seek to understand the underlying problem with the doors. The resident told the landlord that he was concerned about cockroaches in the hinges, and it was reasonable for the landlord to conduct an inspection of these. It is noted that the landlord has recently replaced the hinges on some doors, and the resident remains unclear as to the reason for this or whether or not any evidence of cockroaches was found. This evidences ineffectual communication on the part of the landlord, which will be addressed in more detail below.
The resident has informed the Ombudsman service that he and his wife find the doors difficult to operate. It is important that the landlord now fully investigates what action is needed to ensure the resident is able to utilise the doors comfortably. The landlord’s stage two response demonstrated that it was aware that the resident had enquired about adaptations for disabled or elderly residents, and this should have prompted it to consider the household’s potential vulnerabilities in its responses. The fact that the landlord did not identify the reason for the resident’s request to change the doors is further evidence of insufficient communication and customer focus on the part of the landlord.
The landlord’s stage two response indicated it would take appropriate steps to remedy the damp and mould, at that time located in the bathroom. However, this has clearly not been wholly effective because the resident reports the issue has now spread and the photos he has shown to the Ombudsman support this. The landlord’s actions appear to have stalled and the resident is now unclear what action it will take, or when that will be. The landlord must take appropriate steps to assess the current extent of the damp and mould, employing a qualified inspector and following its recommendations to ensure the matter is remedied.
The landlord has attempted to remedy the matter of the banister, however the resident is not confident that the new handrail is safe. An occupational therapist assessment should identify whether any adaptations are needed. If this does not take place, then the landlord should look to re-inspect the banister and ensure it is fit for purpose.
The landlord has responded well to the infestations of mice that have been reported. It sent an appropriately qualified contractor to carry out several rounds of treatment in 2021, and carried out further treatment when droppings were later found under the bath.
The landlord has carried out treatment for cockroaches, which were found when the resident’s heaters were replaced in late 2021. The resident remains concerned about cockroaches, and it would be reasonable for the landlord to employ a pest control specialist to conduct a one-off inspection to specifically investigate hard to access areas that could be harbouring any remaining infestation. If any evidence is found of a current infestation, it should follow the advice of its contractor as to the appropriate treatment required.

Communication with the resident

It is observed that the resident asked for a point of contact who preferably spoke Punjabi. To ensure it avoids indirect discrimination, the landlord should arrange for access to translated communications where required. The landlord prioritised the provision of a single point of contact over the more important aspect of language. The landlord did not give due care and consideration to the impact this had on the resident’s ability to access its services, and risked discriminating against him because of this. This is a serious matter.
While the resident used a representative to contact the landlord, the communications the Ombudsman has seen support the conclusion that providing translation would have increased the opportunity to resolve the disputed matters earlier and more satisfactorily. The landlord should now ensure it has offered the resident the opportunity to have access to translation.
The resident remains unclear about the separation of responsibilities of the landlord and himself, under the terms of his tenancy agreement. The landlord should ensure it offers an opportunity to the resident to have access to this information, in a translated format.
Given the impact on the resident, it would have been reasonable for the landlord to consider compensation for the time and trouble the resident experienced due to its failure to give him access to translation services. While a family member helped him, this added to the time and trouble caused by the failure to offer access to this service itself. With reference to the landlord’s compensation policies and the Housing Ombudsman’s guidance on remedies, the Ombudsman considers the below to be appropriate compensation to put things right in this case:
1. £500 for the failure to offer access to translated communications.
2. £100 for the time and trouble caused to the resident in having to arrange for a representative.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration on the part of the landlord with respect of its classification of the number of bedrooms in the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s responses to the resident’s request for new doors, and reports of damp and mould, a broken banister and pests.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its communication with the resident.

Reasons

The landlord acted reasonably in seeking to find a solution to the bedroom-categorisation, in the exceptional context of the pandemic and the associated government guidelines. The solution it identified was not to the detriment of the resident. The landlord has acknowledged that its communication to the resident around this process was not clear enough, and has accordingly offered appropriate compensation.
The landlord took reasonable steps to put right the repairs and pest issues the resident had raised. However, its communication meant it did not fully explore the matters and has led to further confusion.
The landlord should have offered translation services to the resident once it became aware of his needs. For this reason, the landlord should ensure the resident has appropriate access to translation going forward.

Orders and recommendations

Orders

It is ordered that within four weeks of receiving this report, the landlord pay the resident directly a total of £650 compensation, to be comprised of:
1. £50 previously offered for the confusion caused by its initial communications, if it has not already been paid.
2. £100 for the time and trouble caused by its failure to offer access to translation.
3. £500 for its failure to provide appropriate access to translation.
It is ordered that within two weeks of receiving this report, the landlord contact the resident to ascertain whether he wishes to have access to translation for written or spoken communications in future, and ensure his responses are recorded on his file as appropriate.
It is ordered that within two weeks of receiving this report, the landlord inspect the resident’s property for damp and mould, and checks the new stair hand rail is securely affixed to the wall. It should then provide the Ombudsman with the outcome of the inspection and any follow up action it agrees with the resident.
It is ordered that the landlord ensure that it refers the resident to the occupational therapy service for an assessment if appropriate. If it decides this is not appropriate, it is ordered that the landlord attend the resident’s property within two weeks of receiving this report, to identify whether the internal doors require easing and adjustment, or other appropriate remedies to ensure they are usable by the resident and his wife.
The landlord must confirm to the Ombudsman when these actions are complete.

Recommendations

It is recommended that the landlord review its policy on access for those who do not speak English fluently, and ensure it is compliant with the Equality Act 2010. It is recommended that the landlord offer training to staff to ensure the correct application of its access policy.
It is recommended that the landlord arrange for an appropriately qualified pest control specialist to thoroughly inspect the resident’s property for cockroaches, including hard to access areas, and that the landlord follows any recommendations made by the specialist should evidence of any infestation be identified.