Barking and Dagenham Council (202009340)

REPORT

COMPLAINT 202009340

Barking and Dagenham Council

25 November 2022

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 resident complains about:
1. The suitability of the property offered by the landlord in February 2020.
2. The landlord’s handling of her subsequent concerns about the size of the property.
The Ombudsman has also considered the landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 41 (c) of the Scheme sets out that the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion, concern matters that are the subject of court proceedings or were the subject of court proceedings where judgement on the merits was given.
After carefully considering all of the evidence, the suitability of the property offered by the landlord following on from a court judgment is outside of the Ombudsman’s jurisdiction under this paragraph. This is because the attributes that the property needed to have to be considered suitable for the resident at the time were decided during court proceedings, and the property met these criteria. Details of the court hearing are included in this report by way of background only.

Background

The landlord’s website sets out a two stage process. At stage one it would respond to the complaint within 10 working days. At the final review stage it would respond within 30 working days.

Scope

The resident has expressed a number of other concerns in her communications with the Ombudsman, for example around the decant process, her ability to bid on new properties, and historically having requested a bath rather than a shower. The Ombudsman understands that these matters form part of the background to the resident’s complaint, but in the interests of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint to the landlord. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service. Any issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required.
The resident has set out concerns that her and her family’s health have been impacted by the matters complained about. The Ombudsman was very sorry to learn of the health issues of the resident and her family, but cannot determine whether the landlord is responsible for any deterioration in health or exacerbation of a health condition. Whilst this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider any personal injury aspects of the resident’s complaint. These matters are likely better suited to consideration by a court or via a personal injury claim.
The resident has alleged discriminatory practices on the part of the landlord, stating that it has treated her differently based on immutable characteristics such as disability. The Ombudsman cannot make a finding of discrimination under the Equalities Act 2010 or otherwise, since this is a legal matter that would have to be determined by a court. This Service is therefore unable to consider whether the landlord has engaged in discriminatory practices towards the resident. However, this investigation will look at whether or not the resident has been treated fairly.

Summary of events

The estate that the resident’s original property (property A) was situated on was to be redeveloped, and as such the resident was required to move via a decant. The resident’s occupational therapy (OT) assessment set out a need for a level access shower. The landlord made a number of direct offers to the resident from 2018 to 2020 for properties which it found to meet her housing needs, which the resident declined. As the landlord found that it had exhausted all efforts to enable the move, it made an Order for Possession.
On 23 January 2020 the County Court granted the landlord possession of property A, satisfied that suitable alternative accommodation was available to the resident at property B. The court found that ‘…any suitable alternative accommodation for the Defendant needs to be, but need only be, let to the Defendant pursuant to a secure tenancy (as defined by Part IV Housing Act 1985), contain no fewer than 3 bedrooms and contain a level access shower; and UPON the Court being informed by the Claimant that it is offering now to the Defendant for her occupation [property B] which satisfies the three factors listed above and the Court being satisfied that this is suitable alternative accommodation available for the Defendant’s occupation…’
However, in a departure from the Order the resident was offered a different property (property C), which also met the criteria stipulated by the court. This was because the landlord had believed that property B had a level access shower, but in fact it did not. Further, the offer of property B was temporary due to it being in a later phase of the redevelopment. Property C was a permanent three bedroom flat similar in size and situated a short distance from property A, with a wet room and garden.
On 19 February 2020 the resident made a formal complaint to the landlord, stating that she had been discriminated against and forced to move to a different area, and an unsuitable property. She said that it was unsuitable as her family had become infected with eczema which she believed to be a disease emanating from the house. She said that the sink did not allow her and her family to wash their hands, the bathroom was too small, and she had never requested a shower and had made this clear many times, as she required a bath to assist with her medical issues. The resident also said that the kitchen was too small to fit a cooker and a fridge, or for her to access with her mobility aids. She asked that the landlord attend to inspect the property.
Internal records following this show the landlord discussing visiting the property.
The resident’s representative emailed the landlord on 4 March 2020 to request a review under section 202 of the Housing Act 1996 on the suitability of property C, in addition to the formal complaint that the resident had made. On 10 March 2020 the landlord replied, stating that it would complete the review by 30 April 2020.
The landlord sent a stage one complaint response on 20 March 2020, in which it noted that property C met the requirements of the court order, and that while the resident felt that she had been unfairly treated, the number of offers made to her far exceeded that made to other households prior to the application being made to court. It explained that the Court directed it to make an offer of accommodation that had three bedrooms and a level access shower. It said, ‘…given the upheaval that moving to a temporary flat would have meant for you an offer of permanent accommodation was made at [property C], which also met the terms of the order.’
The landlord noted that while the resident had said that she did not request a level access shower, this was fully addressed during the Court hearing and confirmed as per the recommendation of the OT, and so it was bound to comply with this. The landlord urged the resident to request a visit from the OT team to complete a new assessment in light of her comments about the suitability of property C.
On 28 March 2020 the resident asked for the complaint to be escalated, reiterating her concerns and stating that she wanted a more senior person to consider it, and asking again for the landlord to visit to inspect. The landlord said that it would respond by 13 May 2020.
The landlord’s internal records around this time show that in considering the request for review under section 202, it concluded that a variation to the order should be sought at Court (rather than a review carried out).
Other internal records again indicate the landlord considering an inspection of the property, but there is no indication this went ahead (the Ombudsman notes that the Covid-19 lockdown had just been implemented).
On 14 April 2020 the resident’s representative was informed that an application to vary the Order at court would be made, and it was open to the resident to challenge the suitability of property C at the hearing.
The representative emailed the landlord on 5 May 2020 stating that the resident now accepted a move from her preferred area, but, ‘…has stated that the current property does not have sufficient room for normal kitchen white goods and the rooms are significantly small which is in breach of the room standard space under the 1985 Act.’ It asked if the landlord would make one final offer, or proceed to court. The landlord replied stating that the application was being made to vary the order.
On 13 May 2020 the resident chased up the stage two complaint, and asked the landlord why it had not visited the property, again raising concerns about discrimination. Internal records from early June 2020 again show the landlord discussing a visit to the property.
On 10 June 2020 the landlord wrote to the resident declining her request to escalate the complaint, on the basis that an application was being made to vary the order, and so the issue was best pursued via this avenue rather than the complaints procedure. It apologised for the delay in updating the resident on this. On 16 June 2020 the resident replied, setting out her unhappiness at being housed outside of her preferred area.
Around this same time internal landlord records show that it determined the resident’s concerns about not being able to use the kitchen and bathroom due to small size would need to be referred for an OT assessment, although there is no indication that this referral was made.
The next record available is dated 6 October 2020 and shows the resident chasing up the matter with the landlord, saying that she had not heard anything further. She set out her health issues and how the property was impacting these. Internal records show the landlord making enquiries about the planned application to court, and asking that an assessment of the resident’s needs be carried out to determine if property C was suitable.
An email from adult social services to the landlord dated 28 October 2020 noted ‘OT screening was completed and now sitting with the OT Team for further input.’ An OT assessment was carried out in December 2020 which found that property C did not meet the long-term needs of the resident as the space in the bathroom and kitchen was restricted.
In January 2021 the Ombudsman wrote to the landlord and asked it to respond to the resident’s complaint about the suitability of her housing. Internal records from February/March 2021 show the landlord making internal enquiries about the status of the matter. On 16 March 2021 this Service again wrote to the landlord to ask it to respond to the resident’s complaint. It did so on 23 March 2021, setting out the history of the matter. It noted that the resident’s concerns about property C focused on two main areas: The size and configuration of the toilet, bathroom, and kitchen, and it’s location. It explained that in order to accommodate the shower in property C, it had been fitted with screens that folded back to allow access to the toilet and handbasin. It said, ‘This is common in bathrooms of this type and during a telephone conversation with you shortly after you moved, I did confirm that if this arrangement was now not suitable for your mobility, a request for a reassessment by an Occupational Therapist could be made. This option is still available to you and you would need to request this.’ Regarding the location, the landlord explained how very few homes that met all of the resident’s criteria became available in the resident’s preferred area.
The landlord noted that in April of 2020 it was determined that a variation to the order should be sought at Court due to the resident’s concerns about the property. Due to the Covid pandemic and the resulting restrictions this action had been delayed and at the time of writing the landlord could not provide a timeframe for this, but would do so as soon as it could.
The resident requested escalation of her complaint that same day. She pointed out that the OT assessment had been carried out in December 2020 but had not been acted on, and questioned why not. The resident also said that despite her asking on many occasions, the landlord had still not attended to inspect the property. She concluded, ‘I have been without suitable accommodation for 1 year and a half, and haven’t been able to create a home for my children, or anything of the sort. As a disabled woman, with very minimal capabilities, this is disgusting and the council should be ashamed of themselves. The council has closed every possible road for me. I request that the council retrieve my OT report ASAP…’
In an email to the landlord from the OT team dated 25 March 2021 it was confirmed that an OT assessment that had been carried out in December 2020 found that property C was not suitable due to limited space to mobilise safely with a walking frame and transfer without difficulty.
On 12 April 2021 the landlord again asked for information on the outcome of the OT assessment, and in reply the following day the OT team repeated the information that they had provided on 25 March 2021.
On 23 June 2021 the Ombudsman wrote to the landlord and asked it to provide is final response to the complaint. On 18 August 2021 the Ombudsman wrote to the landlord giving it five working days in which to provide its complaint response. The following day the landlord made internal enquiries as to the OT report, and what its next steps should be regarding the resident’s accommodation.
The landlord provided a final response on 6 September 2021, setting out the history of the matter. It noted that an application had been made to vary the order around June 2020, but its legal team advised that due to the pandemic, such applications were not being accepted. It also said, ‘I would also advise that the council were not moving any tenants due to the lockdown that was in place from March to August 2020.’
It said that until the resident referred to the December 2020 OT visit in her 23 March 2021 email, it had been completely unaware of this visit ‘…as you did not mention it previously and furthermore because the Occupational Therapy team had not had a specific request for this visit to be done from an officer within the council, the report was not sent anywhere for further action. It remained on file for some time and wasn’t forwarded…until 10th June 2021.’ The landlord noted that the OT report was significantly different to previous reports, and based on the information contained, it did not now believe that it was required to go back to the court to seek a variation as the OT report stated that property C was not suitable for the resident’s needs due to the lack of space in the kitchen and bathroom.
The landlord concluded, ‘I acknowledge that there has been delays in getting to this point and this would have caused you uncertainty. In light of the delays and time and trouble you have experienced, I believe it is reasonable to award you £350. Due to the pandemic, I would also point out that the possibility of being found another property would have been extremely unlikely, so I do not consider that there has been injustice caused to you in this regard.’
On 27 September 2021 it was confirmed in writing to the resident that property C was not suitable. The letter said, ‘However, I would advise that whilst we will try to move you sooner, it is likely to be 2- 3 months before you are rehoused as we are gradually moving families again, in order of need, now that we have emerged from lockdown, and you have accommodation available to you which, while not ideal, is, according to the OT report, manageable. We would ask that you bear with us and apologise for the on-going inconvenience that this will cause you.’
The resident reports that she has yet to be moved, a year later. The landlord has confirmed that no new offers have been made due to the very specific requirements that it has been asked to meet via the latest OT assessment and by the resident. It has said, ‘The main difficulty…is the size of the bathroom and kitchens in most of the properties the Council owns will be like [the resident’s] current home.’ The landlord has stated that it may discuss widening the search area with the resident if nothing suitable can be located within the next 3-6 months in her preferred location.

Assessment and findings

In her complaint to this Service the resident has expressed how unhappy she is with property C and that it is not suitable for her needs. She explains that she is disabled and needs sufficient space within the property to move around with her frame, and to be able to access the bathroom and kitchen, which she says she is unable to manoeuvre in whatsoever. The resident also states that in June 2020 she was advised that the landlord would be seeking an application to the court to vary the order, but received no further update on this.
The resident has described the impact the housing situation has had on her and her family, saying that it has left them in tears daily, and had caused much upset and distress. She has said that she is very ill and unable to look after herself, and living in a house where she cannot use the bathroom or kitchen as they are too small has made this worse. The resident has concluded, ‘I have been without a home, discriminated against, lied to, manipulated, coerced, threatened, mentally abused and so much more by the council, and their resolution to being without a home for my health and my children for 2 years is £350 I can’t think of anything more insulting than this offer.’ As an outcome to her complaint the resident would like to ensure that other decant tenants are not treated in the same way, an increase to the £350 compensation, and a move to a suitable home.
When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes;
2. put things right, and;
3. learn from outcomes.
The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the leaseholder. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

The landlord’s handling of the concerns about the size of the property.

The resident raised concerns about the suitability of property C based on its size via her February 2020 formal complaint. Internal records show that following this there was some internal discussion by the landlord about visiting the property, but this does not appear to have gone ahead. This was something of a shortcoming on its part, as it would have been reasonable for the landlord to inspect, if only to reassure the resident that it was taking her concerns seriously. Having said this, the subsequent stage one complaint response did clearly set out the landlord’s position, and reasonably directed the resident to request a visit from the OT team to complete a new assessment, given her concerns about space. There is no indication that the resident made contact with the OT team at this time. Equally, there is no indication that the landlord considered making contact with the OT team itself to facilitate.
On 28 March 2020 the resident asked for the complaint to be escalated, and asked again for the landlord to visit to inspect. In the same period the resident’s representative requested a review under section 202 of the Housing Act 1996 on the suitability of property C, which the landlord initially accepted. It is unclear why a review was requested under section 202, as there is no indication that the resident had been rehoused via the landlord’s homelessness duty. However, the evidence shows that its legal team found that an application to court to vary the original order was the correct course of action. The landlord acted reasonably here in considering all of the circumstances of the matter, and taking legal advice. Having said this, the landlord could also have considered a referral for an OT assessment to determine the suitability of the property, given that an application to court was likely to take some time, and especially when, as it later stated, it found that courts were not taking such applications.
Internal records again show the landlord considering an inspection of the property around this time, but there is no indication that this went ahead. The Ombudsman takes into account the fact that Covid-19 restrictions had just come into place, but the landlord should have at least responded to the resident’s requests that it visit. There is no indication that it communicated with her about this, which again would have caused the resident frustration.
There is also no evidence that the landlord kept the resident updated in anyway during this period. The resident has noted in her complaint to this Service that while the landlord stated in its September 2021 final response that its legal team were aware that the courts were not accepting applications to vary, neither she nor her representative were advised about this. There is no evidence in the information available of the landlord updating the resident on the application at any point, or that it considered an alternative to the court to address the issue when it discovered this. Neither is there any evidence that it advised the resident that it was not moving tenants between March and August 2020, as it has stated was the case in its September 2021 letter. This was a failing on the part of the landlord, as it should have communicated with the resident and kept her updated. That it didn’t, led to distress and uncertainty for the resident.
In September 2020 internal landlord records show that it determined that the resident’s concerns about not being able to use the kitchen and bathroom due to small size would need to be referred for an OT assessment. In an email dated 27 October 2020, the landlord made a request to Adult Social Services for an assessment of the resident’s needs to be carried out. In reply, Adult Social Services said, ‘OT screening was completed and now sitting with the OT Team for further input. I have added them to this email, if this needs to be chased up or escalated, please contact the OT Team’. It is not clear what prompted the landlord to make the referral at this time.
It is somewhat unclear from Adult Social Services’ reply whether OT screening had been completed on the basis of the landlord’s request, or if this was something that had already been done. The resident’s own account of events states that it was her representative that requested an OT assessment, and that it was subsequent to this that one was carried out in December 2020. She also states that her representative made the landlord aware of the assessment ‘on numerous occasions’.
While it is not possible to determine the exact course of events in relation to the OT assessment, overall, the evidence that is available demonstrates that the landlord’s final response to the complaint was not entirely accurate. It stated that until the resident referred to the December 2020 OT visit in her 23 March 2021 email, it had been completely unaware of this visit because the OT team had not had a specific request for this visit to be done from an officer within the council. It can been seen that this was not accurate, as the evidence shows that a request was made by a landlord officer, and while it may have been the case that this did not trigger the December 2020 OT assessment (given that the resident has said it was her representative that requested this), it does show that the landlord could reasonably have been expected to know that an OT assessment was planned, and that it had been advised how to chase up or escalate the matter.
As the landlord was aware that an assessment was needed, and one was pending, it would have been appropriate for it to have proactively ensured that it followed this up and made itself aware of the outcome.
The Ombudsman takes into account the fact that the landlord did urge the resident to request a visit from the OT team to complete a new assessment in its March 2020 stage one response, and that there is no indication that the resident did so at that time. But, as later events show, it was open to the landlord to request an OT assessment itself. Given the resident’s ongoing concerns and the lack of progress in addressing these it is unclear why it took until the end of October 2020 for it to do so. In addition to this, the landlord also noted in its final response to the complaint that the OT assessment ‘remained on file for some time and wasn’t forwarded…until 10th June 2021.’ Again, the evidence shows that this was not correct, with the landlord itself making enquiries with the OT and the OT confirming in March 2021 that property C was not suitable. The landlord asked the same again the following month, and it was again confirmed by the OT that the property was not suitable.
It was on the basis of this OT assessment that the landlord then determined that the property was unsuitable. Had the landlord considered requesting an OT referral sooner, and had it followed up the October 2020 request appropriately and then taken action when it became aware of the outcome in March 2021, it is likely that it would have come to this conclusion much sooner (given that none of the resident’s circumstances had changed in the meantime).
It is not possible for the Ombudsman to determine whether this would have led to a move for the resident, and the landlord’s comments that it was not moving any tenants due to lockdown from March to August 2020 are also acknowledged, as well as the difficulty of finding a property that meets the resident’s requirements in the area she requires. However, there was a missed opportunity to assess and take action sooner on the concerns that the resident had been expressing since February 2020, causing the resident avoidable uncertainty and distress. Further, there is little indication that the landlord has fully acknowledged and identified the cause of the failings in this case, and so has not taken steps to ‘learn from outcomes’. As such, orders to remedy this are made below.
It is acknowledged that, as an outcome to this complaint, the resident wishes to be rehoused. However, the availability of properties which suit the needs of the resident depends on a number of factors and impacts other applicants and residents. An order to rehouse the resident to a specific property has not therefore been made.
Finally, the resident has asked the Ombudsman whether the decant affects any possible council discounts should she decide to buy the property at a later date. The Ombudsman has asked the landlord about this, and it has stated ‘No impact at all on any discount – [the resident] is a secure tenant and would be entitled to full discount’.

Complaint handling

The landlord’s response to the 19 February 2020 complaint took four weeks, rather than the ten working days set out in its complaint policy. Its reply to the 28 March 2020 request for review took two and a half months, which was some way outside of its 30 working day timeframe, with no indication that the resident was kept updated. While it was reasonable that the landlord declined to escalate the complaint on the basis that an application to court was being made to vary the order, and so the issue was best pursued via this avenue, it is unclear why it took two and half months to advise the resident of this, given that the evidence shows that the landlord had made the decision to apply to court around early April 2020. The landlord did apologise for the delay, but offered no explanation for it. The delays in responding to the complaint would have been frustrating for the resident.
In January 2021 the Ombudsman wrote to the landlord and asked it to respond to the resident’s complaint about the suitability of her housing. No response was provided, and so this Service wrote again on 16 March 2021, and the landlord provided a stage one response on 28 March 2021. This represents a further delay on the part of the landlord.
The resident requested escalation of her complaint that same day, but it took further contact from the Ombudsman on 23 June 2021 and 18 August 2021 before the landlord provided a final response on 6 September 2021. This was a significant delay in the handling of the complaint, which would have added to the resident’s distress and frustration.
The landlord has taken action to ‘put things right’ for the resident in its final response to the complaint, by acknowledging delays on its part and the time and trouble this caused to the resident, and has offered £350 in compensation.
The Ombudsman’s own compensation guidance sets out that amounts of £100 and above are suitable where there has been a failure that led to a detrimental impact on a resident, but no permanent impact. As such, the amount offered, along with the apologies, was a reasonable remedy to the ‘adverse effect’ caused to the resident by the delays in the complaint handling.
Finally, the Ombudsman notes that the timeframes set out in the complaint policy information on the landlord’s website are not compliant with the Ombudsman’s Complaint Handling Code. Further, no full complaint policy document has been provided when the Ombudsman has requested this, and none is available on the website. It is therefore unclear whether or not the landlord holds a full complaint policy. As such, a recommendation is made below to address this.

Determination (decision)

In line with section 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s concerns about the size of the property.
In line with section 53 (b) of the Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint handling failures satisfactorily.

Reasons

Although initially the landlord dealt reasonably with the resident’s concerns about property C, from around mid-2020 there was a lack of action on its part to keep the resident updated, and a lack of follow up, especially from September 2020 when it determined that the resident’s concerns would need to be referred for an OT assessment. This led to a missed opportunity to assess and take action sooner, and distress and uncertainty for the resident. It has not fully acknowledged or addressed this in its response to the complaint, which itself was inaccurate.
While there were significant delays in the complaint handling, the landlord has apologised and offered appropriate compensation.

Orders

Within one month of the date of this report, the landlord must:
1. Pay the resident £550 for the frustration, distress and uncertainty the failings in its handling of the concerns about the size of the property caused.
2. Carry out a review of how the resident’s concerns about the size of the property were handled, taking into account the findings of this investigation, and determining what action has been or needs to be taken to ensure that such failings are not repeated. The need for staff training and a specific policy/procedure around requesting and following up OT referrals should be considered. The landlord should write to the Ombudsman detailing the findings and outcome of this review.
3. Review the current position in relation to the resident’s requirement for alternative accommodation, the current availability of alternative properties, discussing this with the resident to ensure that she is updated.

Recommendations

If it has not done so in the last 12 months, the landlord should carry out a review of its complaints handling, to ensure that complaints are dealt with within the appropriate timeframes.
The landlord should immediately review whether it’s complaint handling practice is compliant with the Ombudsman’s Complaint Handling Code, and confirm whether or not it holds a full complaint policy.
If it has not done so already, the landlord should pay the resident the £350 offered in its response to the complaint, as the finding of ‘reasonable redress’ in relation to the complaint handling was made on this basis.
The landlord should let the Ombudsman know of its intention to comply with these recommendations within four weeks.