Clarion Housing Association Limited (202215034)
REPORT
COMPLAINT 202215034
Clarion Housing Association Limited
30 June 2023
Our approach
The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.
Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.
The complaint
1. The complaint is about the landlord’s response to the resident’s:
a. Request for the installation of a downstairs toilet.
b. Associated complaint.
Background
2. The resident is an assured tenant of the landlord. The property has one bathroom and one toilet located on the first floor.
3. Two adult children also live in the property, both of whom have diagnosed medical conditions that include ADHD, learning disabilities and bipolar disorder. The resident has reported that the one bathroom often causes conflict between the two adult children. Due to their needs, the resident often has to clean the bathroom regularly after their use. The resident has mobility problems which make it more difficult for her to use the stairs.
4. The resident submitted a management transfer application in 2021. This was under the grounds that she had been a victim of historic domestic abuse. The landlord rejected the resident’s application and her subsequent appeal. It provided its final response to the resident, rejecting her appeal on 30 July 2021.
5. On 11 March 2022, the landlord acknowledged its receipt of an occupational therapy report for the resident. The assessment had been completed on 8 February 2022. This report stated that the resident would benefit from moving to a new property, in a new location. The new property should be without stairs. Alternatively, the property should have a downstairs toilet to assist the resident’s medical needs. This same report provided the landlord with recommendations for adaptions to the resident’s current property. This included a downstairs toilet. This was to assist with the resident’s mobility.
6. The landlord agreed to send a surveyor to complete a feasibility study for the installation of the downstairs toilet. On the 4 April 2022, the resident raised a complaint stating that she had not heard from the landlord about the request for the downstairs toilet. The resident said the landlord was not supporting her medical needs for the adaptions at the property.
7. The landlord’s stage one complaint response stated that the resident had informed a member of its staff that the outcome she was seeking was to be rehoused rather than have any further adaptions take place, within her current property. After receiving the landlord’s stage one complaint response, her request for rehousing was refused. The resident said she was therefore in desperate need of a second toilet. The resident requested her complaint be escalated. She asked the landlord to conduct a further review of her management transfer request. This was based on the change in her physical and mental health.
8. On 8 June 2022, the landlord’s stage two response stated that the resident’s request to be re-housed on medical grounds was not covered within its management transfer policy. It advised the resident to contact her local authority or consider pursuing a mutual exchange. This stage two complaint response was provided by a member of staff, who had worked with the resident 15 years previously. The resident believed this caused a conflict of interest in the landlord’s handling of her complaint.
9. In July 2022, the landlord conducted a feasibility study, for a downstairs toilet to be installed in the resident’s property. This report concluded that although it was possible to install the downstairs toilet; this would be at a high cost. It concluded the better option would be for the resident to be re-housed. On 11 October 2022, the landlord provided a third stage response to the resident’s complaint. The landlord stated that it was not responsible for service failure towards the resident in managing her request for a downstairs toilet to be installed. It did award the resident £100 for the delay in providing its third stage complaint response.
10. The resident remained dissatisfied with the landlord’s final response. She brought her complaint to the Ombudsman on 11 October 2022. The resident’s desired outcome was for a downstairs toilet to be installed. She felt that she had exhausted her request for a management transfer, which was her preferred option. The resident said she continues to suffer with pain in her knees which is at its worse when using the stairs. She has chronic pain in her lumbar disc and is suffers with an increase in urinal frequency following illness.
11. On 15 November 2022, the landlord provided the resident with a fourth stage, directors final response to her complaint. The landlord reiterated that it found no service failure in its response to the resident’s request for a downstairs toilet to be installed.
Assessment and findings
12. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. There are three principles driving effective dispute resolution: Be fair – treat people fairly and follow fair processes, put things right, and learn from outcomes.
13. The Ombudsman must 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 resident. If it is found that a failing did lead to an adverse effect, the investigation will consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes.
Policies and Procedures
14. The landlord’s management transfer policy states that this will only be used where a resident is experiencing:
a. Serious anti-social behaviour of harassment that puts their life at risk.
b. Domestic abuse that is putting or is likely to put the resident or a member of their household’s life at risk.
15. It also states that in very exceptional circumstances it may utilise a management transfer where the resident has had a significant change in their circumstances and is no longer able to access their home e.g., discharge from hospital after a life changing injury or disability.
16. The landlord’s aids and adaptations policy states it describes a major adaption as being one that costs £1,000 – £30,000. It provides examples of these which include a wet shower room or the installation of a stair lift. It will only carry out a major adaption where it is reasonable and practical for the property. It also needs to be supported by a local authority occupational therapist assessment. Any adaption costing more than £30,000 will be considered on an individual basis, but the regional director will make the final decision as to whether it will permit an adaption to a property. Any structural changes including extensions will only be authorised in exceptional circumstances. This policy also states that the landlord will seek alternative accommodation for residents where adaptions are not appropriate.
17. The landlord’s complaint policy up to June 2022 states that it has a two-stage complaint process. It then updated this policy in June 2022 which retained its two-stages of the complaints process, but added timescales to when it would provide its responses to residents. The updated complaints policy states the landlord will log a resident’s stage one complaint within ten working days. It will then provide its written response within 20 working days. The landlord refers to the second stage of its complaints policy as a peer review. It states it will acknowledge a resident’s second stage complaint within ten working days and provide its written response within 40 working days.
Request for the installation of a downstairs toilet.
18. On 11 March 2022, the landlord received an occupational therapy report. This stated that the resident would benefit from moving to a new property in the area. The property should have no stairs, or if it had stairs, it should have a downstairs toilet. The report also recommended that the resident’s current property have a downstairs toilet installed. It provided the following as reasons for its recommendations:
a. The only toilet is upstairs in the bathroom, within the property. This causes conflict between the resident’s two adult children. They both suffer with medical conditions. One makes a mess whenever he uses the bathroom, which the resident then has to climb the stairs and clean. The other uses the bathroom for long period as part of her mindfulness.
b. The resident was in constant pain due to a popped disc in her back. She was observed having to climb the stairs on her hands and knees.
c. The resident was concerned that her ex-partner, who had previously subjected her to domestic violence had moved into the local area.
d. The resident’s adult son had also had trouble with local gangs in the area turning up at the property.
19. The same day it received the report, the landlord submitted a rehousing request for the resident. It also agreed to send a surveyor to carry out a feasibility assessment for the installation of a downstairs toilet. It stated that it would not make any adaptations to the property if the resident was seen to be rehoused. This was a fair response by the landlord and in line with its aids and adaptations policy. This policy states that it would expect a resident to remain in a property for a minimum of five years, following any major adaptations. It would not be an effective use of funds to install an adaptation if the resident were due to move out soon afterwards.
20. On 4 April 2022, the resident raised a complaint to the landlord as she had not received an update about her request to be rehoused. It had also not contacted her about the installation of the downstairs toilet. The resident’s MP also requested the landlord to progress the resident’s complaint. The resident told the landlord on 14 April 2022, that she wished to be rehoused, rather than have any further adaptions carried out to her property. On 22 April 2022, after the landlord informed the resident that it would not rehouse her; she told it that she was in desperate need of a second toilet, in her current property. A surveyor attended the property on 20 July 2022. The resident should not have had to wait for 131 days for a surveyor to attend her property, to carry out a feasibility assessment. The landlord’s repairs policy and its aids and adaptations policy do not provide response times. However, in the Ombudsman’s view, 28 days would have been a reasonable timescale for a surveyor to attend the property. This is in line with industry best practice. If the landlord was delayed in arranging a surveyor’s visit for reasons out of its control, then it should have communicated this with the resident. It has not provided this service with any such justification for its delay.
21. On 21 April 2022, the landlord told the resident that it did not provide management transfers for medical issues, unless in exceptional circumstances. It referred the resident to her previous management transfer application which it had rejected at its appeal stage on 22 July 2021. When the resident escalated this complaint to the landlord, she asked for it to re-consider her management transfer application. The landlord responded by stating that it could find no new evidence to support a fresh review, for such an application. It told the resident to approach the local authority for re-housing due to medical reasons or consider a mutual exchange. At the time the landlord provided this response it had been advised by its surveyor, that due to the cost of installing a downstairs toilet, a property move would be the best option for the resident. The landlord’s aids and adaptations policy states that it will seek alternative accommodation when adaptations are not appropriate. In the Ombudsman’s view, the landlord should have considered taking one of the following steps at this stage:
a. Allow the resident to submit a further management transfer application. The medical exceptional circumstances should have been considered. The Ombudsman is not stating the resident should have necessarily been transferred under the policy. This would depend on the availability of suitable properties within the landlord’s stock and also on the priority of other residents awaiting a transfer. The Ombudsman is stating that the resident should have been given access to a fresh application as both the needs and the circumstances had changed significantly, and this needed to be considered by the landlord in line with its transfer policy. Or
b. The downstairs toilet installation should have been completed if the landlord was not going to rehouse the resident. Or
c. The landlord should have, in line with its aids and adaptations policy, assisted the resident to seek suitable, alternative accommodation to meet her medical needs such as referring her to the local authority or other landlords who may have a suitable property for her to move it.
22. On 20 July 2022, the landlord’s surveyor confirmed that a downstairs toilet could be fitted in the property. This would, however, be at a high cost. The surveyor confirmed that this would require reconfiguration of the downstairs, as well as building an extension. The surveyor did also consider other option which included a stairlift, but this alternative was not feasible. Within the landlord’s aids and adaptations policy this would be classed as a major adaptation. The landlord then questioned the suitability of the person who carried out the original occupational health report and so a further assessment was completed on 9 August 2022. The report provided the same conclusion and stated that the property was inappropriate for the resident’s level of mobility. The resident had also suffered a number of falls in the property by that time. The landlord has then stated that it disputed these reports as they were written by a mental health worker for the NHS and not the local authority. It is understood that the resident is still in the process of providing a third occupational health report for the landlord, that it will accept. The resident remains without a downstairs toilet in her property and has reported that her medical condition is worse. It is a significant inconvenience to the resident, that 316 days after the first occupational health report recommending a downstairs toilet based on her medical needs, that the landlord has taken no action. The landlord should have taken steps to support the resident by installing a downstairs toilet. Or it should have taken steps to assist the resident in seeking suitable, alternative accommodation, that meets her medical needs.
23. It is unreasonable for the landlord to request additional reports at this late stage. The landlord had the opportunity to query the occupational therapy report at the outset if it did not consider it valid. In this situation, the landlord should have been clear about the type of report it would accept, and it should have assisted the resident with obtaining such a report such as signposting her to the relevant department at the local authority to arrange this.
24. For these reasons, a finding of maladministration is made for the landlord’s response to the resident’s request for the installation of a downstairs toilet. The adverse effect to the resident from the landlord’s errors has been significant. Medical reports evidence states that using the stairs maximises pain to the resident. She is also needing to use the toilet more due to another illness. The landlord has failed to put things right and has not accepted any service failure towards the resident. The Ombudsman’s approach to compensation is set out in our Remedies Guidance (published on our website). The remedies guidance suggests where there has been a failure and the landlord has failed to adequately address the detriment to the resident this service will consider financial redress between £100 and £600. In line with the Ombudsman’s remedies guidance, the landlord is ordered to pay the resident £600 compensation. In order to put things right, the landlord is also to allow the resident to make a fresh management transfer application. If the resident is rejected in her application, then the landlord is to explain its decision clearly to the resident and provide sufficient support to the resident in finding suitable, alternative accommodation, if it will not install the downstairs toilet.
The associated complaint.
25. At the time when the resident submitted her complaint, the landlord’s complaint handling policy provided no timescales in which it would provide a response. The landlord’s stage one response was provided within 12 working days. Its stage two response was provided within 16 days. This was reasonable as it was in line with the Ombudsman’s Complaint Handling Code which sets out the Ombudsman’s expectations of landlords’ complaints handling. The Code states that stage one responses should be issued within ten working days and stage two responses should be issued within 20 working days.
26. The landlord’s second stage response, however, did not address the issue of the original complaint. It declined to allow the resident to apply for a management transfer. It stated that it did not address the issue of the installation of a downstairs toilet, because this was not raised by the resident, when she requested the matter be escalated. The landlord should have recognised that the resident’s complaint was that she either wanted to be rehoused or have a downstairs toilet installed.
27. The landlord then provided two further final stage responses. It’s third response to the resident’s complaint was provided on 11 October 2022. It awarded the resident £100 for its delay in providing its third response. The landlord conducted this further review, as the resident identified that the individual who completed the second stage response had worked with the resident previously. The resident stated this employee ‘detests her’. The resident said therefore that this member of staff was biased towards her. The resident said there was a conflict of interest in this person investigating her complaint. This landlord acknowledged the resident and the person who investigated the second stage response had worked together 15 years previously but did not take any further action regarding the resident’s concerns. This was an error of judgement in the Ombudsman’s view. Even though a significant time had lapsed, for the interest of fairness, the landlord should have recognised that where possible, this complaint should have been handled by another member of staff. The landlord has not advised this service of any reason why the complaint review could not have been conducted by a separate individual. As a result, this caused significant distress to the resident. She felt she was not being treated fairly and independently by the landlord.
28. On 15 November 2022, the landlord provided a fourth response in which it stated that it found no service failure towards the resident. The Ombudsman recognises that the landlord’s further responses to the resident’s complaint were its attempt to provide redress to the resident, and present that its investigation of her complaint was independent. This was positive. However, it offered no apology to the resident, and it failed to address the resident’s complaint within its responses. It was also unreasonable for the landlord to add further stages to the complaints process, which was not in line with its own complaints policy or the Complaint Handling Code. The correct process is for residents to be allowed to escalate complaints to the Ombudsman if they remain dissatisfied with the landlord’s stage two response. This should not prevent landlords from attempting to resolve the outstanding issues, but in this case the landlord did not take action to resolve the complaint by either fitting the toilet or arranging a transfer for the resident. It maintained its position, whilst issuing additional complaint responses which was unreasonable.
29. In line with the Ombudsman’s own remedies guidance, it orders the landlord to pay the resident £250 compensation. In line with the Remedies Guidance this level of compensation is appropriate where there is inconvenience and/or distress to the resident and where the landlord has failed to provide a proportionate level of redress.
Determination (decision)
30. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s request for the installation of a downstairs toilet.
31. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the associated complaint.
Orders
32. The landlord is to apologise to the resident in writing within 28 days of this report. The apology is to be in line with this Service’s guidance that it acknowledges the maladministration and expresses a sincere regret in the handling of the resident’s:
a. Request for the installation of a downstairs toilet.
b. Associated complaint.
33. Within 28 days, the landlord is complete a transfer management application for a suitable property, in line with the recommendations provided in the occupational therapy report dated 9 August 2022. The landlord should write to the resident and the Ombudsman to confirm the outcome of the application and the reasons for its decision.
34. The landlord is ordered to pay the resident the following compensation:
a. £600 for its response to the resident’s request for the installation of a downstairs toilet.
b. £250 for errors in its response to the associated complaint.
Recommendations
35. The landlord should review its complaint handling policy to bring it in line with the Ombudsman Service’s Complaint Handling Code. (Available to view on the Housing Ombudsman Service website).
36. The landlord should consider conducting staff training to ensure that complaints are handled in line with its internal complaint’s procedure and the Housing Ombudsman Service’s Complaint Handling Code.
37. Following the management transfer application process, the landlord should either provide a schedule of works for the installation of the downstairs toilet within the property or, provide assistance to the resident seeking alternative accommodation, in line with its aids and adaptations policy.