Orbit Group Limited (202227500)

REPORT

COMPLAINT 202227500

Orbit Group Limited

28 March 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:
1. The landlord’s handling of the resident’s application for rehousing to one of its properties.
2. The landlord’s handling of the associated complaint.

Background

The resident is an assured shorthold tenant of the landlord. Her tenancy began in July 2020. The property is a 2 bedroom flat. The landlord is a housing association.
The resident was housed at her existing property after being awarded urgent medical priority banding by the local authority. The local authority bid for the current property on her behalf at the time.
This complaint mainly relates to a sheltered accommodation scheme property, also owned by the landlord, that the resident sought to move to during 2022.
The records provided by the landlord show that the resident has mobility issues and epilepsy which causes seizures. The resident has also advised the Ombudsman that she has osteoporosis and is partially sighted.

Scope of investigation

In her communication with the Ombudsman, the resident raised additional concerns related to the condition and suitability of her current property. She included issues involving damp and mould in the property, flood damage, a temporary move to another property, a lack of hot water, heating or cooking facilities and the need for adaptations alongside her continued requests to be rehoused.
Paragraph 42(a) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure.
These issues have not exhausted the landlord’s complaints process as part of the complaint under investigation. As such, these issues do not form part of this investigation. It is noted that the resident has advised that she raised a separate complaint with the landlord regarding some of these concerns and a new case was opened with the Ombudsman under reference 202341773.
Within its complaint responses to the resident, the landlord has noted that the resident felt it had been discriminatory in its handling of her application to be housed in its property. The Ombudsman has not seen evidence to confirm the resident raised this concern. For completeness, this Service cannot determine whether discrimination has taken place as this is a legal term which is better suited to a court to decide on. However, we can look at whether the landlord responded fairly and appropriately to the resident’s complaint.
The resident has also commented on the impact the existing property and the delays in rehousing her are having on her existing health conditions and welfare. The Ombudsman does not doubt the resident’s comments. However, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing or award damages. The resident may wish to pursue a personal injury claim against the landlord if she considers that her health has been affected by its actions. This is a legal process, and the resident should seek independent legal advice if she wants to pursue this option. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

Summary of events

The landlord’s records show that it advertised an available property in one of its older person’s sheltered accommodation schemes via the local authority on 17 August 2022 and received a shortlist of applicants on 25 August 2022. Its records note that the resident was the first customer on the shortlist, however, her current banding and priority was unknown at the time.
The landlord’s records state that it called the resident on 26 August 2022 in order to complete its initial assessment. The landlord has advised that the resident was told that it needed to obtain references before making a decision. Its records show that it was awaiting a response to its request for a reference from her previous landlord on 27 September 2022.
The local authority adult social care team contacted the landlord on 30 September 2022 in relation to the landlord gaining references for the resident’s application. They said she had called feeling distressed as she felt she would not be able to get the keys for her new flat, she had packed her belongings and had slept in a van and a garden shed. They asked that the resident was contacted.
The landlord’s internal records from 3 October 2022 showed that the application was still going through the lettings process, and it was awaiting references for the resident. It noted that the resident had called 6 times in the past week, and it had returned her calls. The resident had also attended the scheme twice and requested the keys for the property in question. It confirmed there was no sign–up date as the application had not yet been approved.
The landlord’s records show that the resident attended the scheme to sign up for the new property on 4 October 2022. They also show that this was not a pre-arranged appointment and the resident had not been asked to attend as no decision had been reached regarding the property.
The landlord wrote to the resident on 7 October 2022 to advise that it was unable to proceed with an offer of accommodation following her application to be housed in one of its properties. It confirmed that it did not believe the resident’s needs met the criteria for sheltered accommodation and felt these were best suited to a more supported environment such as one of its “extra care” properties. It explained that within its extra care properties, it could assist more with the resident’s seizures and the property would be adapted for the resident’s medical needs as per the occupational therapy assessment provided as part of her housing register application. It confirmed that the property would not be held but that the resident could appeal its “cannot house” outcome in writing.
The resident’s local MP wrote to the landlord on her behalf on 14 October 2022. They had been contacted by the resident on 7 October 2022 as she had said that she had attended to collect her keys for her new property and had been refused the keys on the day. Later on the same day, she was informed that the landlord did not believe the property was suitable for her needs. The MP had advised that the resident now had nowhere to go and asked the landlord for clarification on what happened and the reason for the its decision. They also asked that the landlord found suitable accommodation for the resident as a matter of urgency.
The landlord responded at stage 1 of its complaints process to the MP on 20 October 2022 and explained the following:
1. It did not uphold the complaint as the resident’s application had not been accepted at the time of her attendance to the property and a confirmed offer of tenancy was not agreed.
2. It noted the MP’s concern that the resident now had nowhere to go and confirmed that she remained its tenant at her current address and noted that she had returned there.
3. It confirmed that during the application process, information was found regarding the resident’s medical conditions from the previous local authority applications that had not been included on the recent application form for the property in question. The reason not to offer the resident the property was because there were no extra-care staff on call to be able to assist in case the resident had an epileptic episode. It noted that as the resident suffered from serious falls, she may potentially require more medical treatment than it could provide at the site.
4. It confirmed that this was not the only medical condition, as the resident had multiple other conditions that it would be unable to support her with at the property in question. It said that it had also considered the potential impact on the welfare of other residents that it was accountable for on the scheme.
5. It confirmed that it had sent the resident the confirmation of refusal by letter and email prior to her attendance on 7 October 2022 to collect keys. The information was also provided to her Occupational Therapist and care worker in place with advice on what to look for going forward. The resident had refused this and said that the landlord was being discriminatory rather than having her best interests in mind.
6. It confirmed that it had contacted the resident that day to advise her of the outcome of the complaint and she had asked for the complaint to be escalated. It confirmed that its stage 1 investigation had concluded, and it had found no failure in its service. It confirmed that it would escalate the complaint as the resident remained unhappy.
The landlord sent an acknowledgement letter to the resident on 21 October 2022 to confirm that it understood she remained dissatisfied with the decision regarding her housing application. She had said that she was told the property had been allocated to her during the interview process.
The landlord’s records show that on 14 November 2022, it interviewed the staff member involved in making the decision regarding the resident’s application. It also enquired about the resident’s current priority banding for rehousing directly with the local authority who advised that she had made a homeless application which qualified her as band A priority. The local authority also confirmed that it had medical evidence that the resident required a seizure alert dog for her epilepsy and had an occupational therapy assessment dated 4 April 2022 which recommended a property with level access throughout, including level access shower facilities. The landlord’s records show that it had asked for more information as to why the resident had been accepted as homeless as she had an active tenancy with it. The Ombudsman has not been provided with a copy of any response.
The landlord’s records show that it called the resident on 22 November 2022 in relation to her complaint. Its notes from the call detail the following:
1. The resident advised that she wanted to move out of her current property and wanted the property she had applied for as she could have an assistance dog there. She had been told by the local authority that the scheme she had applied for was the only suitable location. She added that her mother lived at the scheme and wanted her to move there. She felt that the landlord had declined her application due to people making up lies about her, including that she was a bad person. She said she was aware that her siblings had protested against her moving to the scheme in question.
2. During the conversation the resident said she was not living at her current property as there were a lot of repair issues, it was not suitable as she could not have a service dog and was 4 minutes away from her previous property where she had reportedly been attacked.
3. She had tried to settle in the property but there had been leaks and floods which had damaged her belongings. She added that she had no cooking facilities as the electrics kept failing, no heating, and had been told not to place carpet due to damp.
4. The landlord clarified that the property in question was no longer available as it did not hold properties while it completed appeal or complaint investigations.
The landlord issued its stage 2 complaint response to the resident on 5 January 2023 and explained the following:
1. It understood that she was unhappy with its decision not to offer a property at one of its sheltered schemes and felt it was acing in a discriminatory way when making the decision rather than basing the decision on her medical needs and supporting staff presence on the scheme.
2. It confirmed that it had reviewed its policy and procedure and had interviewed the staff member who dealt with the application in order to understand whether it had managed this in line with procedure.
3. It upheld the complaint on the basis that it had not followed its procedure in full. It confirmed that it had relied on historical information in relation to the resident’s medical conditions and did not fully explore, either with the resident or medical professionals supporting the resident, that the information was still current.
4. It confirmed that as part of its process for its older persons schemes, it would usually carry out a living needs risk assessment to understand the applicants medical, welfare and support needs and how they were currently managing to live independently. It confirmed that it may refuse an application where the needs of an applicant are considered to be high.
5. It advised that it had not completed a living needs risk assessment in the resident’s case, and it had based its decision on outdated information regarding her health with no understanding of how she was currently managing and the support available. Had it completed the assessment, it may have still decided not to proceed, however, it concluded that it did not consider the decision to have been made fairly at the time.
6. In recognition of its failure and the upset caused, it offered the resident £200 compensation. It reassured the resident that if she bid on another of its properties, it would carry out a full assessment and explain its decision with clear reasons based on up-to-date medical information. It confirmed that it would provide feedback to managers of the teams involved to ensure the correct process was followed.
7. It noted that alongside the complaint, the resident had raised concern that she could not live in her current property due to its condition, that she had no cooking facilities, no heating and had been told not to place carpet due to flooding. It confirmed it would ask its colleagues to investigate these issues further and would request they liaise with the resident’s support team and the local authority to best understand how to support the resident for a move.
The resident initially referred her complaint to the Ombudsman in February 2023. She remained dissatisfied with the condition of her existing property, stating she had no heating, there was damp and mould (and the landlord had painted over this), and there was constant flooding. She added that the property did not meet her housing needs and was dissatisfied that the landlord had not offered her an alternative property. She explained that she had been temporarily moved but had returned and the repair issues were outstanding. She added that she had no hot water, heating, cooking facilities or adapted bathing facilities despite a double hip replacement and she was unable to have a guide dog at the premises. She wanted the landlord to make the property safe for her to stay there and ensure the heating worked and to be moved to a new property.

Assessment and findings

The landlord’s tenure policy states that it offers General Needs Housing, Sheltered Housing, and Extra Care Housing.
The landlord’s Letting of Homes policy and its Allocation and Letting of Homes procedure state that:
1. The majority of its properties are let through local housing registers or locally based choice-based lettings schemes.
2. When a shortlist or nomination is received for one of its advertised properties, it would carry out a suitability questionnaire to ensure that the customer met the needs and requirements of the property and that there were no immediate refusal reasons.
3. Grounds for refusal include; the applicant having no Right to Rent, rent arrears over £1000, eviction by any landlord on grounds of antisocial behaviour within the previous 3 years, refusal to consent to relevant checks, provided false information in support of their application, previously been the perpetrator of abuse or harassment towards staff or posing a significant risk of harm to the health and safety of staff or community, or unlikely to be able to sustain a tenancy, even with support.
4. It would then ask the resident to complete their application via its digital lettings tool. A telephone assessment appointment would be carried out at an agreed time. It would carry out an assessment to complete or verify information provided by the applicant.
5. As part of the assessment, the landlord would establish if:
  1. The property is affordable.
  2. The property is sustainable.
  3. If the customer meets any of the reasons for refusal.
  4. Whether a house, house with support, or cannot house decision is made.
  5. For its “Independent Living” properties, an additional Living Needs Risk Assessment and care assessment may be required depending on the type of property.
6. The landlord would assess each applicant on their own merit and remain fair and transparent to ensure any rejection was carried out in line with policy and it could evidence and justify its decision.
7. It would not usually assess housing need as this would have been decided by the local authority. However, it needed to be aware of any obvious disparities in the information provided by the applicant.
8. Good communication should be maintained with the applicant, local authority, and support agencies throughout the process.
9. If a decision is made not to proceed with an offer, the landlord should clearly explain the reasons for refusal and its decision making. A rejection decision should be communicated verbally to the resident and then followed up with an email or letter confirming the decision and making the applicant aware of their right to appeal. The property is not held while the appeal is investigated.
10. Where an applicant is accepted, the landlord would aim to complete the viewing and sign up for the property on the same date. An appointment for the would be arranged with the applicant.
The landlord’s complaints policy states that it has a 2 stage formal complaints process. It would accept complaints from formal representatives such as MPs of councillors. At stage 1, it aims to acknowledge the complaint within 5 working days and respond within 10 working days. It will contact residents to discuss the outcome of a complaint before confirming this in writing. If the resident remains dissatisfied, they can escalate their complaint to stage 2. The landlord aims to acknowledge the resident’s request to escalate the complaint within 5 working days and respond within 20 working days.
The policy states that where the landlord is not able to respond within its published timescales, it may extend the timescale by a further 10 working days. It would contact the resident to discuss this and explain the reasons. It would also confirm this in writing and advise of when it expects to be able to provide a response.

The landlord’s handling of the resident’s application for rehousing to one of its properties

It should be noted that it is not the Ombudsman’s role to order the landlord to rehouse the resident or decide whether the property in question would have been suitable for the resident’s needs or offered to her. However, the Ombudsman can look at the landlord’s decision making and whether it acted in line with policy and procedure, and whether its subsequent decision was reasonable.
In this case, the resident’s complaint related to the landlord’s decision to reject her application to be housed at a property within one of its sheltered schemes. The issues raised by the resident’s MP specifically related to the resident’s concern that she was offered the property and was refused keys on the day she was due to move in.
The Ombudsman has not been provided with evidence to support that the resident was formally offered the property in question or that any appointments had been made for her to view the property or sign up. Its internal communication confirms that the landlord was still making its decision as of 7 October 2022. It was ultimately reasonable that the landlord did not provide the resident with keys to the property or complete a sign up with her as it had not offered her a tenancy at the time.
However, while there is no evidence of a formal offer of accommodation being made to the resident that would suggest that she had been accepted for the property, there is a lack of documentary evidence to show that the landlord had communicated effectively with her prior to refusing to proceed with her application. Despite the landlord’s internal communication referring to several phone calls from the resident, in its submissions to the Ombudsman, the landlord has included that there are no notes to show when it had spoken to the resident or what had been discussed. In addition to the lack of records to show that it had communicated effectively with the resident, there is a lack of evidence to show that the landlord had communicated with the resident’s occupational therapist or care worker as it said it had within its stage 1 complaint response. Further, while the landlord advised that it had provided its refusal letter via email and in writing on 7 October 2022, there is a lack of evidence to suggest that it had communicated the decision verbally or attempted to do so which would have been appropriate in line with its policy.
It is noted that the landlord rejected the resident’s application on the basis that it felt her care and support needs would be best suited to a more supported environment than could be provided at the property in question which was sheltered accommodation.
The landlord acted fairly within its stage 2 complaint response by acknowledging that its decision to reject the resident’s application was not made appropriately at the time as it had not followed the correct process in line with its policies and procedures. The landlord acted fairly by acknowledging its failure to obtain up to date information related to the resident’s medical conditions and support needs and failure to complete a living needs risk assessment to understand how she currently managed with her conditions.
It acted reasonably by confirming that if the resident applied to another of its properties it would complete a full assessment in the future and confirming it would provide feedback to the managers of the teams involved. It was reasonable for the landlord to advise that had it obtained this information, it still may have decided not to offer the resident the property in question as it may still have deemed the property unsuitable. However, it is noted that its failure to gain up to date medical information also meant that it did not consider whether housing the resident in sheltered accommodation at the property in question would have been a better alternative than her current property in view of the support available.
While the landlord made some effort to put right its failings, its offer of £200 compensation is not considered proportionate in view of the additional communication failings identified. For this reason, the Ombudsman has found service failure in the landlord’s handling of the resident’s application for rehousing at one of its properties. An order has been made below.

The landlords handling of the associated complaint

The resident’s MP initially raised concerns on her behalf on 14 October 2022. It was reasonable for the landlord to treat this formally as a complaint as it was clear that the resident was dissatisfied with its decision not to offer her the property. It responded to the MP directly on 20 October 2022, which was within its policy timescales.
Within its response, it noted that it had communicated with the resident directly and the resident had expressed dissatisfaction with its response. The Ombudsman has not been provided with call notes or evidence related to the landlord’s communication with the resident or details of her dissatisfaction.
It acted reasonably by acknowledging the resident’s escalation request on 21 October 2022 but it then failed to provide its stage 2 complaint response until 5 January 2023. This was 51 working days later and significantly outside of its policy timescales. The Ombudsman has not seen any evidence to confirm that the landlord had informed the resident of when she could expect to receive a response or offered an explanation for any delay at any stage prior to issuing its final complaint response. It also failed to acknowledge or apologise for the impact on the resident within its final complaint response which was likely to have caused inconvenience.
The call notes provided by the landlord from its call with the resident on 22 November 2022 show that she had raised specific concerns that it had formed its decision as her siblings had made up information about her. The landlord would be expected to address each aspect of the resident’s complaint within its response, and it would have been appropriate for it to have acknowledged this concern within its response and confirmed its position to the resident.
The delay and lack of communication in relation to the complaint delays, and failure to address each aspect of the complaint was likely to cause inconvenience to the resident. An order has been made below for the landlord to pay additional compensation to the resident in view of the failings identified.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handing of the resident’s application for rehousing to one of its properties.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handing of the associated complaint.

Reasons

The landlord has acknowledged that it failed to follow the correct process and procedure when considering the resident’s application. However, it did not demonstrate that it had communicated effectively with the resident throughout the process.
There were several delays in the landlord’s handling of the complaint which were not acknowledged by the landlord through its internal complaints process.

Orders

Within 4 weeks, the landlord is to write to the resident to apologise for the failings identified within the report.
Within 4 weeks, the landlord is to pay the resident an additional £300 compensation in recognition of the inconvenience caused by its communication and complaint handling failures.
The landlord is to provide evidence of compliance with the above orders to the Ombudsman within 4 weeks.

Recommendations

It is recommended that the landlord considers carrying out staff training for front line staff and complaint handlers to ensure that accurate records are kept of communication with residents and that residents are adequately updated where there are likely to be delays in its complaint handling.
It is recommended that the landlord contacts the resident to:
1. ensure that it has up to date information recorded on its system regarding her medical conditions and vulnerabilities;
2. provide support and advice in relation to her housing options given her ongoing concerns about the suitability of her current property.
The landlord should confirm its intentions in relation to the recommendations above within 4 weeks.