Notting Hill Genesis (NHG) (202335219)

REPORT

COMPLAINT 202335219

Notting Hill Genesis (NHG)

21 November 2024

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 handling of the resident’s concerns about the size and suitability of the second bedroom in her property.

Background

The resident is an assured tenant of the landlord. The resident entered into an assured tenancy agreement on 12 June 2013. The property is a 2 bedroom ground floor flat. The resident resides with her 2 children, one of whom has ADHD and is partially sighted. The resident has also reported to this Service and the landlord that she suffers with a shoulder condition that requires specialist treatment.
In 2021, the landlord awarded the resident a band B priority banding to enable her to bid on its available 3 bedroom properties. The landlord reviewed this decision in December 2023, following an appeal by the resident and a further medical assessment. However, it did not change the banding awarded.
On 10 January 2024, the resident raised a complaint to the landlord. She said that during the process of measuring for carpets, she discovered that the second bedroom was too small. The resident said that she was unable to fit anything in the room apart from a set of bunk beds. This meant she needed to use the boiler cupboard as storage, which posed a health and safety risk. The resident said that the landlord was aware of her son’s disabilities and the family required a 3 bedroom property.
The landlord issued its stage 1 response on 22 January 2024. It said that it would measure the bedroom and take proportionate action dependent on the outcome. The landlord measured the bedroom and confirmed it measured 5.45 square metres. The resident’s housing officer submitted a bedroom reclassification form and said that it was not possible to use the room as a bedroom.
On 29 January 2024, landlord staff discussed the case via email, and it was determined that the room was a bedroom, despite the small size.
It is unclear when the resident formally escalated her complaint.
On 22 February 2024, the landlord issued its stage 2 response. It said that it would not consider the resident’s home a 2 bedroom property. The landlord confirmed that it would consider the property a 1 bedroom, 2 bed space property. The landlord said it would use the re-classification information to re-submit a new banding review to the panel within the next 2 weeks. The landlord reiterated alternative options to the resident such as mutual exchange and approaching the council to go on the housing register.

Post ICP

On 27 March 2024, the landlord awarded the resident a band A priority status to enable her to bid on available properties. The landlord also confirmed internally that it would not reclassify the property as a 1 bedroom property. It said that it would consider the property as a 2 bedroom, 3 bed space property. This was because while the bedroom was unsuitable for the resident, it may well be suitable for another family who moved into the property.
On 12 September 2024, the landlord contacted the resident and confirmed her band A status. It assured the resident that it reviewed its available properties on a weekly basis, and it would make her a direct offer of a property when one became available. This Service is aware that the landlord subsequently offered the resident a property, but she refused it due to its location and not having a garden. The landlord has assured the resident this would not impact her receiving a further direct offer. However, it said that there was a shortage of larger family homes, so it was unable to confirm when a suitable property would become available.
The landlord also confirmed to the resident that its policy regarding bedroom reclassification had changed since it issued its stage two response. Therefore, it would not reclassify the resident’s property as a 1 bedroom property. It apologised that it had not told the resident sooner.
The resident remains dissatisfied because she said the landlord has failed to consider her son’s needs to have a bedroom of his own, and a garden. The resident said she had supporting medical evidence that she has sent to the landlord.

Assessment and findings

The landlord operates an allocations and lettings policy. When allocating homes, the policy outlines that the landlord considers the number of and floor area of rooms available for sleeping, in accordance with the Housing Act 1985. It then allocates properties to the appropriate applicants/existing tenants.
The policy also outlines that the landlord awards tenants that register for a transfer a priority banding based on how their housing affects their circumstances. The circumstances in which the landlord would award a band A priority would include (but not restricted to) having a life-threatening medical condition that seriously affects their housing. It would award a band B priority if a resident had a medical need that was adversely affected their housing, as well as being statutorily overcrowded.
The landlord operates a residential rent policy. It states that where the landlord identifies an error in rent calculation, it would adjust the rent and calculate the difference using the date that it became aware of the error. Errors in rent calculation include occasions where it identified that it calculated rent based on the incorrect number of bedrooms.
In May 2015, the landlord introduced an internal procedure about the re-classification of bedrooms. The procedure provided guidance to housing staff about the process to follow if a resident requested a reclassification of the number of bedrooms in their property. The procedure outlined that the landlord should assess the floor size of a room considering the space standards set out within the legislation covering statutory over-crowding.
The procedure outlined that a room with a floor size between 4.65 and 6.51 square metres would be a suitable bedroom for 1 child between the ages of 1 and 9. Children between the ages of 1 and 9 only count as half a person.
The landlord confirmed to this Service that it withdrew the procedure from use as of 1 April 2024. However, the resident had completed the landlord’s internal complaints process by 22 February 2024. As such, it is fair to assess the reasonableness of the landlord’s actions and decisions in line with the procedure being in use at that time.
In accordance with the procedure, it is evident that the resident’s second bedroom was only suitable for half a person due to the floor size. This Service understands that the resident’s children share the second bedroom. In the interest of fairness, this investigation will consider that the resident’s daughter could share a bedroom with the resident. As such, from the month that the resident’s son turned 10 (April 2022), the room would have been unsuitable as he would have no longer been half a person by the standard set out in the overcrowding legislation, of which the landlord based its procedure.
The landlord submitted paperwork to reclassify the bedroom after taking measurements, which was appropriate. It was reasonable that the landlord advised the resident to apply to her council’s housing register and consider a mutual exchange of tenancies. It advised the resident that following the reclassification, it would review her priority banding. This was also appropriate action for the landlord to take.
The landlord awarded the resident a band A priority banding to bid on suitable properties. The landlord advised that it would directly offer a property when a suitable one became available. This was appropriate, particularly as the medical assessment to support the banding deemed that band C was an appropriate award on medical grounds. Positively, the landlord also backdated the resident’s band A priority to May 2015 which it said significantly increased her chances of successfully bidding on properties. This was reasonable action for the landlord to take.
While the landlord took positive action to an extent, it is concerning that the landlord delayed reclassifying the bedroom (as the procedure was still in place at the time). The landlord took a reactive approach following the resident’s complaint, which was inappropriate. The landlord should have published guidance that was accessible to tenants in relation to the procedure, so its position was transparent, and residents were aware that they could raise issues with room sizes. If it had done so, it is likely that the resident may have contacted the landlord sooner without the need to raise a complaint.
The landlord’s communication and transparency regarding reclassifying the room was poor. Despite there being evidence of internal communications confirming that the landlord would still consider the room as a bedroom, the landlord contradicted this in its stage 2 response. It is unclear why this was the case. However, within the stage 2 response, it confirmed that it had reclassified the room. The resident only found out this has not happened when she later queried the change to her priority banding. This was inappropriate and failed to manage expectations. The resident should be confident in all commitments made by the landlord in its complaint responses. Its failure to follow through with what it said it had/would do erodes trust between the resident and landlord and causes the resident avoidable disappointment.
Furthermore, the resident should not have needed to prompt the landlord to advise her of this information. The landlord should have informed the resident it had not reclassified the room sooner. The delay caused the resident frustration and inconvenience. It is unclear when the landlord informed the resident of her band A priority banding.
Nevertheless, there is no evidence that reclassifying the bedroom would have resulted in the resident moving to a suitable property sooner. As above, the landlord has awarded the resident the highest possible priority banding to move properties and has committed to providing a direct offer for a suitable property when one becomes available. The landlord is limited in any further action it can take to expedite a move.
In accordance with the landlord’s policy, the room was too small to use as a bedroom. Therefore, the resident was unfairly paying rent for a 2 bedroom property.
With regards to the landlord’s rent policy, this Service addressed this in a previous determination issued in March 2024. Given the evidence that was available, and the landlord’s policy, we ordered compensation using rent as the basis of our calculation. The period ran from when the tenancy began as this was relevant to the circumstances of the case. The landlord requested a review of the determination and said that in accordance with its policy, it should not backdate a rent refund to the tenancy date. Rather, it said the relevant date was when it became aware of the issue. This Service determined that this was not a fair approach, and our decision was upheld at review.
There is no evidence that the landlord held measurements of the resident’s property, so at no time would it have taken it upon itself to review the information it held to explore whether reclassification was necessary. If the landlord’s stance is accepted, this would mean that in situations like this, a resident would be unduly penalised for attempting to make do with a property that had been incorrectly classified, with a correction only being made by way of the resident no longer being able to manage in the incorrectly sized property and making a complaint.
The landlord failed to act in accordance with its reclassification procedure in place at the time of the complaint. We have therefore concluded that there was maladministration in the landlord’s handling of the resident’s concerns about the size and suitability of the second bedroom in her property.
As such, this Service orders the landlord to pay the resident compensation using rent as the basis of the calculation from 12 April 2022 (when the resident’s son turned 10, and he could no longer occupy the room as a bedroom) to 1 April 2024 (when the landlord withdrew its reclassification procedure). The Ombudsman has calculated the compensation award as follows;
1. The resident’s rent between 12 April 2022 and 3 April 2023 was £182 per week. The resident’s rent from 3 April 2023 to 1 April 2024 was £195 per week.
2. The landlord should pay the resident an amount equivalent to 5% of the rent paid between the above dates.
3. This totals a period of 103 weeks.
4. This Service has calculated the percentage of 5% based on what is reasonable and proportionate in the circumstances. The percentage has been calculated with reference to the size of the property. It has also been taken into consideration that while the room cannot be comfortably used as a bedroom for the resident’s children, the room itself is not uninhabitable or unusable.
5. The rent refund awarded is £970.
We have ordered further compensation that considers the distress and inconvenience the resident experienced due to failings with the landlord’s communication.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of the resident’s concerns about the size and suitability of the second bedroom in her property.

Orders and recommendations

Within 4 weeks, the landlord is ordered to pay the resident a total of £1,100 in compensation. This should be paid directly to the resident, and not offset against any arrears. The compensation comprises of;
1. £970 rent refund as detailed above.
2. £130 for the distress and inconvenience caused to the resident as result of landlord’s communication failures.
Within 6 weeks, the landlord must review the resident’s bidding history on the choice-based lettings system, and work with the resident to ensure that she is proactively bidding on as many properties as possible. This review may include a discussion with her about expanding her preferred areas to live in or any other considerations the landlord may consider to be reasonable.
The landlord must provide evidence of compliance with the above orders to this Service.