Clarion Housing Association Limited (202115884)

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REPORT

COMPLAINT 202115884

Clarion Housing Association Limited

15 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

  1. The complaint is about the landlord’s handling of the resident’s request for aids and adaptations to the property.
  2. The landlord’s complaints handling has also been investigated.

Background and summary of events

  1. The resident is an assured tenant of the landlord at the property (‘no 19’), a mid-terrace house with a garden.  She lives there with her two sons, the younger of whom has been diagnosed with autism and ADHD. The landlord was aware of this household vulnerability at the time of the complaint. The resident has confirmed that her son’s condition simultaneously makes it unsafe for him to leave home without supervision, but also causes him to try to do so, often in an emotionally vulnerable state. The resident therefore requested from the landlord two adaptations, the first to the front door lock to enable secure locking from the inside in a way her son could not release on his own, and the second to a rear garden fence, to prevent his climbing over it.
  2. On 7 April 2021, the resident formalised a complaint to the landlord that she had received confused and contradictory responses from it after requesting the adaptations in October 2020 based on a GP letter. At around the same time she contacted the Local Authority’s Occupational Therapy (‘OT’) team which referred the matter back to the landlord who, on 8 April 2021 referred the case to its independent external OT assessor to visit and make recommendations.
  3. On 12 April 2021 the landlord emailed the resident saying that it could not accept evidence from a GP in support of such requests, but only an OT assessment. The email did not mention that an OT assessment was pending at that time. This assessment resulted in recommendations from the OT, in May 2021, for both the resident’s requests to be considered.
  4. In the landlord’s stage 1 complaint response dated 16 June 2021, the landlord apologised for mishandling the original request and said it had sought a contractor quotation for the requested lock change, but gave no timescale for its completion. It confirmed that the OT report had also recommended the garden fence works requested, but added that it did not regard this work as an adaptation under its Aids and Adaptations (A&A) policy. The landlord offered £50 compensation for acknowledged service failure in its delayed complaint response.
  5. On 2 September 2021 the landlord issued its stage 2 final response letter, accompanied by a copy of the OT assessment. There was no further mention of the front door lock change, and it is reasonable to conclude from this that these works have progressed.  The landlord upheld the initial refusal to carry out the fence works. It quoted its surveyor as suggesting that the fence belonged to the neighbouring freeholder, but then stated that following the surveyor visit, it had identified that in fact the fence belonged to No 19 and it was therefore the resident’s responsibility. The landlord explained that the landlord was not responsible for dividing fences, unless the tenancy agreement specifically stated as much. It offered additional compensation of £150, comprising a further £50 in relation to the further delay in responding to the complaint, plus a further £100 as a discretionary payment.
  6. The resident brought her case to this Service, asking that the landlord should carry out the requested work and increase the compensation offered for delay and inconvenience.

Assessment and findings

The resident’s request for aids and adaptations

  1. Upon receipt of a request for an aid/adaptation to a property, the Ombudsman expects a member landlord to progress down a reasonable and appropriate process that ensures that the requesting party is treated fairly. The Ombudsman expects an OT to be involved in such cases, as the OT possesses the authority and expertise to assess household vulnerability in the context of the suitability of the home. It is also expected that a landlord will act upon any OT recommendations to adapt a property, or will provide adequate reasons for not putting in place a OT recommendation, with confirmation of what it will do instead.
  2. In this case, the investigation has focussed solely on the fence adaptation. It is clear from the evidence that the other OT recommendation – to fit a new secure lock that would restrict the resident’s son’s ability to leave the property of his own volition – was accepted by the landlord. The fact that this adaptation was not referenced further in the complaints process leaves a conclusion that this aspect of the complaint was resolved. 
  3. The fence in question, which the resident wishes to be adapted so as to restrict her son’s ability to scale it, divides No 19 from the neighbouring property number 17 (‘No 17’). It is clear from the landlord’s stage two response that it initially believed, when surveying the property, that this dividing fence was the responsibility of the neighbour at No 17. However, it is also evident from the same response letter that the landlord subsequently identified that, in fact, this fence came within the responsibility of No 19.
  4. Upon refusing the resident’s request for the works to the fence, the landlord stated that fence adaptations were not ‘usually considered an adaptation’ and further explained that the landlord was not responsible for dividing fences, unless the tenancy agreement contained an explicit provision stating as much. The landlord’s stage two response also said that the resident had stated her view that her tenancy agreement did contain such a provision, but confirmed that it had checked and was ‘unable to find any such clause in your tenancy information’.
  5. It is evident from the copy of the tenancy agreement provided to this Service however, that such a clause does exist. At ‘Part C – Our Responsibilities – 1. Repairs and Maintenance’, which, at 1(a), lists things which are the landlord’s responsibility. That list ends with ‘Boundary walls, gates and fences”. Based upon this provision, the landlord’s position, as outlined in its final response is flawed as the dividing fence does come within the confines of No 19 and the landlord does have a responsibility to repair/maintain that fence, as confirmed by the tenancy agreement. It is of concern that this error occurred, despite the resident having specifically raised this issue.
  6. On 5 July 2021 the landlord’s second-tier complaint reviewer stated in an internal email, that ‘The tenancy agreement mentions responsibility for boundary fences but this is for repairs obviously.’ So it is clear that the landlord was at this point aware of the tenancy provision outlined above, and of its resultant responsibility for the fence, and yet in its final stage 2 response over 2 months later, the landlord told the resident: ‘the dividing fence… is your responsibility…’ and went on to say that it had reviewed the tenancy agreement for the clause the resident said was present saying the opposite, but that: ‘we [can’t] find any such clause….’.
  7. In the Ombudsman’s view, it was immaterial whether the tenancy provision referred to repairs. It was clear from this provision that the landlord retained the responsibility for that fence, so to then state otherwise in the stage two response and then base its refusal on this inaccurate information presents as wholly unsatisfactory.
  8. The landlord’s A&A policy neither expressly includes nor excludes fences and gates but does mention and expressly include “access” in general.  It makes clear that its list of examples is not exhaustive, and it states at term 4.3.1 that ‘minor adaptations’, defined as costing less than £1000 will be carried out by the landlord, if requested by a resident with OT support, where the resident or any member of her household is disabled.
  9. The landlord includes mental impairment, expressly including learning difficulty, in its definition of disability for this purpose at term 4.1 of the A&A policy. The landlord was fully aware that the resident’s son condition. It was for this reason that the landlord had requested the OT assessment which it now knew did in fact support the resident’s request. It therefore appears clear to the Ombudsman that the landlord’s own policy required it to carry out the requested work, provided that it was, in fact, an adaptation under the policy.
  10. The landlord’s A&A policy defines aids and adaptations broadly and is, rightly, purpose/result-focussed rather than focussing on the nature of the aid/adaptation itself. It is therefore hard to understand why the landlord said that “fencing is not usually considered” to fall into this category, and no explanation was given, beyond the statement that: ‘In maintenance terms, this is because unless it specifically states so in your tenancy agreement, the landlord is not responsible for dividing fences”.  Again, it is clear that the landlord had already established that the tenancy agreement did specifically state that it was responsible, and that the landlord knew this by the time it made this statement.
  11. The Ombudsman is not persuaded that there is a connection between the two separate questions of (i) who is responsible for maintenance of the fence, and (ii) whether the works requested in  this case, might amount to an adaptation; but the landlord cannot have it both ways: having stated that the only reason not to consider the works an ‘adaptation’ was that it was not responsible for maintenance of the fence, it must then follow that if the landlord was responsible for maintenance (as it knew it was by the time it made the statement), then it must accept the works as an adaptation.
  12. In any case, the landlord’s own policy does not judge what is an ‘adaptation’ and what is not, based on the nature of the work concerned, but instead, by the nature of the need identified and how the proposed adaptation may meet it. That policy is to the landlord’s credit, but it is incompatible with the policy, to make any blanket statement that a particular type of work is or is not an ‘adaptation’ under the policy, without reference to the disability concerned, the need arising from the disability, or whether the work would meet that need, in a particular case.
  13. At term 2.2 of the A&A policy, its purpose is stated to be support towards independent living. The resident’s son’s development towards independence is expressly stated by the resident to be hindered by her inability to allow him to unsupervised access to the garden without the requested adaptation, and this is echoed in the OT report. 
  14. The landlord said in its final response, that the question of whether the requested work was an adaptation, was considered by its A&A panel which upheld the original decision and said it was not. The Ombudsman has not been provided with any record of the panel’s consideration, its record of its decision, or its reasoning for its decision. There is no evidence whatsoever that the panel, the respondent to the first complaint, or the second-tier reviewer, considered or made any reference to the landlord’s A&A policy in reaching their decisions.
  15. While the Ombudsman is not the proper authority to judge whether the adaptation requested, would have amounted to a ‘reasonable adjustment’ under the Equality Act 2010, this is flagged as a necessary consideration at term 1.1 of its A&A policy. This is a question the landlord should also have considered. There is no evidence that it did so. Nor, if it did, is there any explanation as to how its decision is considered compatible with that Act or duty.
  16. The landlord’s Vulnerable Residents Policy also (at term 2.0) describes its purpose as enabling residents to “live as independently as possible”, and is also, therefore, clearly relevant in a case where the resident’s request and the OT report supporting it, both refer to the independence of her son as hampered by the issue the requested work would resolve. At 3.0 this policy includes “learning difficulties” as an indicator of potential vulnerability. It also, at 4.0, says that the landlord’s staff are expected to ‘be aware of the possibility that a resident may be vulnerable e.g. from information they receive’ and, if they suspect this may be the case, to ‘discuss the support services offered by Clarion, or other local agencies…’  as well as recording the vulnerability.
  17. The Vulnerable Residents Policy also refers to the landlord’s Safeguarding Policy. That policy includes in its definition of safeguarding children at term 3.2, both ‘preventing impairment of children’s health or development’, and ‘Ensuring that children are growing up in circumstances consistent with the provision of safe and effective care’.
  18. Again, it is clearly stated by the resident and supported by the OT report, that the resident’s young and clearly vulnerable son’s development of independence is hampered, and his physical safety placed at risk (with actual examples given) by the fact that, without the works requested, he can and often does climb over the garden fence and go missing. The resident also mentions the burden this risk places on her older son, who has to share in her younger son’s care and safeguarding in these circumstances. There is no evidence that the landlord at any time considered any resultant risk to either child, or made any reference at all to this policy in reaching its decision.
  19. In addition to the issues detailed above, it is also concerning that the resident’s initial request of October 2020 did not result in the landlord initiating a process that might lead to the OT assessment. Instead, it was not until the formal complaint more than 5 months later – following her complaining to the landlord – that the resident was informed that GP evidence was not sufficient and that the OT would need to be involved. Acting appropriately upon the resident’s initial report by explaining to her how best to go about achieving her desired outcome and clarifying what support it might be able to offer in this respect, would likely have brought about a speedier OT assessment and a formal response on the outcomes she sought.
  20. In all the circumstances of the case, the Ombudsman considers the landlord’s response to amount to maladministration. To remedy this situation, an amount of compensation reflecting the extent and protracted nature of the service failures identified is considered appropriate, in addition to a further order to reconsider the fence adaptation in light of the tenancy clause highlighted here and the Ombudsman’s assessment of the case in the context of the landlord’s policies as detailed above. Upon reaching its decision, the landlord to confirm to the resident the timescales for completing any identified works, should this decision confirm that it will now proceed with the fence adaptation. The Ombudsman also considers it appropriate for the landlord to issue a sincere apology to the resident, from a senior member of the landlord’s management team, for the failures identified here.

The landlord’s complaint handling

  1. The resident initially formally complained to the landlord on 7 April 2021, of confused and wrong information about how she should go about requesting the works requested. She said that she had initially been told in October 2020 to get a GP’s letter, and was not told until 5 months later, that this was not acceptable and that she needed an OT assessment. The landlord’s response to this complaint (12 April 2021) consisted of a one-line email merely confirming that it was correct that a GP letter was not acceptable and an OT assessment was required. Given that the resident had raised this issue through the landlord’s complaints process, she would have had a reasonable expectation that it would have been raised as a formal complaint.
  2. Nevertheless, when the resident responded asking the landlord to clarify whether it was, in fact, meant to be its formal response to her complaint, it immediately confirmed that it was, without any substantive further comment. The response did not mention that an OT assessment was pending, nor make any reference to the landlord’s complaints policy or procedure, or to any investigation or finding in respect of the actual complaint.
  3. When the resident, as a result, requested escalation to stage 2, the landlord appeared initially to ignore this request. Instead, having received the OT assessment report on 15 April, sent a further and more formal stage 1 response on 16 April. The landlord later accepted the resident’s assertion that since it had already confirmed its previous response was its final stage 1 response, the complaint had now been escalated and required a stage 2 review and reply.
  4.  While the stage 1 and stage 2 responses to both the delay and wrong information elements of the complaints, and the substantive complaint about the landlord’s decision to refuse the works to the fence, are dealt with above, the landlord simply ignored at both stages, the resident’s complaints about rude, poorly trained and unsympathetic staff, even though it acknowledged that she had raised those issues.
  5. It is noted that clause 4.21 of the land lord’s Compensation policy refers to a compensation payment range between £250.00 and £700.00 for failures such as:
    1. ‘misdirection – giving contradictory, inadequate or incorrect information about a complainant’s rights’;
    2. ‘complainant repeatedly having to chase responses and seek correction of mistakes, necessitating unreasonable level of involvement by that complainant’;
    3. ‘complainant being repeatedly passed between staff and / or teams, with no one officer or department taking overall responsibility, or a landlord not taking responsibility for subcontracted services’;
    4. ‘failure over a considerable period of time to act in accordance with policy. For example… to make adequate adjustments’; and
    5. ‘repeated failure to meaningfully engage with the substance of the complaint, or failing to address all relevant aspects of complaint, leading to considerable delay in resolving complaint’.
  6. Each  of these examples appears to apply separately in this case. The landlord’s overall response, from a complaints handling perspective, presents as lacking in customer focus. Had the landlord properly applied its complaints process at the outset, it might have identified and then addressed some or all of the issues under investigation here. In all the circumstances of the case, a further finding of maladministration is considered appropriate here. It is noted that the landlord’s offer of compensation included acknowledgement for the delays experienced by the resident in its progressing the complaint. A further amount of compensation is considered appropriate and proportionate to reflect the overall failures in the landlord’s complaints handling, bringing the total amount payable up to the range detailed under the landlord’s complaints policy.

Determination (decision)

  1. In accordance with paragraph 52 of the Scheme, there was maladministration in relation to the landlord’s response to the resident’s request for aids and adaptations.
  2. In accordance with paragraph 52 of the Scheme, there was maladministration in relation to the landlord’s complaints handling.

Orders and recommendations

Orders

  1. the landlord shall within 28 days provide evidence to the Ombudsman that it has:
  1. Paid the resident £850 in compensation, broken down as £600 in relation to the service failures identified with its response to the aids/adaptations request and £250 in relation to the service failures identified with its complaints handling.
  2. The above amount to include any compensation amounts already paid by the landlord on these issues.
  3. Provided the resident with a sincere apology, from senior management, for the overall failures on this case.
  4. Reconsidered the resident’s request for the fence adaptation in light of the failures identified here, with clear timescales provided for any works then identified, should this result in a decision that the fence adaptation take place.