Folkestone & Hythe District Council (202305898)
REPORT
COMPLAINT 202305898
Folkestone & Hythe District Council
31 July 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
- This complaint is about the landlord’s:
- Response to the resident’s concerns about major works to the property’s bathroom.
- Complaint handling.
Background
- The resident was a secure tenant. He occupied the property with his wife. Their joint tenancy began in 2014. The property is a 1 bedroom flat in a “semi-sheltered” block. This means the landlord provides some additional support to help the block’s residents live independently. The landlord is a local authority.
- The resident was terminally ill and disabled when he complained to the landlord. He had numerous health conditions including lung disease. Sadly, the resident died in July 2023. To date, an executor has not contacted the Ombudsman to take over his complaint. We must investigate any complaint that has not been withdrawn.
- On 28 October 2022 the landlord replaced the property’s bathroom as part of a major works programme. The works were completed by the landlord’s contractor. At the resident’s request, the contractor removed the existing wet room and installed a bath. The landlord has said the works were completed in 1 day. The evidence shows the contractor removed grab rails without replacing them.
- The resident complained around 8 December 2022. The landlord replied its contractor needed to respond in the first instance. It completed a joint inspection with the contractor around a week later. The evidence suggests the landlord became aware there were no grab rails at this point. It arranged various snagging works and the resident subsequently accepted around £56 in compensation from its contractor.
- The landlord completed a post-works inspection on 16 January 2023. Its inspection report shows the decorating did not meet the landlord’s required standard. In related internal correspondence, the landlord’s surveyor said its contractor’s general preparation of the walls and ceiling were “really poor”.
- On 22 February 2023 the resident complained again. He referenced delays, poor quality works, and repeat visits. He highlighted his vulnerabilities and said he had been unable to bathe for 3 months. Related call records show he subsequently reported the bath was unusable because the water was too cold.
- The landlord issued a stage 1 response on 7 March 2023. It accepted responsibility for delays and quality issues. It apologised and confirmed it would renew the bathroom tiling. However, the landlord said the resident had washed the tiles before the grout was dry (this implied he had damaged the finish).
- The parties exchanged multiple emails over the next few weeks. The resident asked for compensation, said he had been unfairly blamed for defective tiling, raised concerns about discrimination, and reported the situation made him feel suicidal. During the same period, the contractor completed additional works to the bathroom and the landlord’s safeguarding team spoke to the resident.
- On 30 March 2023 the landlord issued a stage 2 response. It said it had relayed information from its contractor about the defective tiles. However, it was unable to confirm what had happened and it was sorry for any misunderstanding. The landlord also said its contractors had been told to provide images of any completed works going forwards (for quality control purposes). The resident’s complaint was not upheld.
- The resident replied the landlord’s response was “unacceptable”. He said he was incontinent and he had been unable to wash properly. He also said, since he was unable to use the bath, he had been “forced to stand at a sink in “absolute agony”. He contacted the landlord’s Chief Executive, who agreed to investigate the situation.
- Due to the Chief Executive’s involvement, the landlord issued a further response at stage 2 on 17 April 2023. It apologised for the length of time it had taken to install the replacement bathroom. It partially upheld the resident’s complaint and awarded him £100 in compensation. This was to recognise the “difficulty and stress” he experienced during the bathroom installation. The landlord’s key points were:
- The resident felt the landlord had breached the Disability Discrimination Act (1995) because he lacked adequate washing facilities for a period. However, the landlord had no evidence to show he reported any issues before December 2022.
- When it was alerted to a lack of grab rails, the landlord took steps to ensure they were fitted as soon as possible. The rails were installed before Christmas in 2022. Around the same time, the resident raised a query about the finish of the tiles and this was resolved.
- The contractor had not supplied any evidence to show the resident damaged the tiling. This confirmed the resident was not to blame for the defect.
- The resident had reported outstanding snagging issues. The landlord had been informed the works were complete. However, a post-inspection was due and the landlord was waiting for the resident to confirm his preferred timing.
- The resident remained unhappy. He told the Ombudsman the grab rails were not fitted until January 2023. In addition, a thermostatic tap had to be readjusted because the bath water was too cold. He felt the landlord failed to comply with its policies and it should apologise. He also wanted a “fairer offer of compensation” given the duration of the delays.
Assessment and findings
- It is recognised the situation was distressing for the resident. Where the Ombudsman finds failure on a landlord’s part, we can consider the resulting distress and inconvenience. We cannot establish liability or award damages.
The landlord’s response to the resident’s delay and equality related concerns about major works to the property’s bathroom.
- The parties agree the new bathroom lacked grab rails for a period following the contractor’s works on 28 October 2023. They also agree the contractor removed existing grab rails that were fitted near the toilet. The resident has said he told the contractor grab rails would be needed “on day one”. The landlord did not provide any first-hand evidence relating to the period between 28 October and 7 December 2022. Although it is unclear exactly what happened, the contractor replaced an adapted wet room with a standard bathroom suite.
- It is accepted the resident requested a bath. However, the contractor should have queried his request with the landlord. This is due to the resident’s health conditions (presumably his ill health was reasonably apparent when the contractor met him and known to the landlord), the nature of the accommodation the contractor was working in (semi-sheltered), and the type of equipment that was being removed. In the circumstances, the evidence points to a serious coordination failure between the landlord and its contractor. The contractor was acting as the landlord’s agent and the landlord was ultimately responsible for its actions. The landlord should have sufficient checks and balances in place to ensure works undertaken on its behalf are appropriate.
- The landlord has said it was first notified about the problem during its joint inspection on 16 December 2022. During internal correspondence several days later, the landlord’s surveyor confirmed the new bathroom needed grab rails and a longer shower hose. They also said there was a poor quality finish to the tiling and some of the necessary decorating works were outstanding. The surveyor did not mention any water temperature issues or a thermostatic tap. The parties disagree about the date the grab rails were eventually installed.
- The landlord has said the installation took place in late December 2022. The resident has said the rails were fitted in January 2023. The landlord did not provide a corresponding repair record to show the exact fitting date. However, its inspection report on 16 January 2023 did not reference any further issues around grab rails. It is therefore reasonable to conclude they had been installed by this point. Overall, the evidence points to an unreasonable delay of around 11 weeks between 28 October 2022 and 16 January 2023.
- The Equality Act 2010 provides a discrimination law to protect individuals from unfair treatment and promotes a fair and more equal society. The Act provides a legislative framework to protect the rights of individuals with protected characteristics from unfair treatment. Under the Act, the landlord has a legal duty to make reasonable adjustments where there is a provision, criterion or practice which puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.
- The Act requires any person or organisation which carries out public functions to have ‘due regard’ to how they can eliminate discrimination, advance equality of opportunity and foster good relations in doing so. Ultimately it is for the courts to determine whether any adjustments (requested or provided) are reasonable. However, we can investigate whether a landlord has properly considered whether the adjustments are practicable and if they would overcome the disadvantages experienced by disabled people. We may find service failure or maladministration if a landlord cannot demonstrate it properly considered whether adjustments were reasonable or should be made.
- The nature of the resident’s protected characteristics required that he be provided auxiliary aids (such as grab rails). The removal of any related items for any period meant the resident faced a situation that would put him at a substantial disadvantage in relation to able-bodied persons.
- Its removal of existing grab rails and delay in providing new rails is evidence the landlord failed to show due regard for its obligations under the Equality Act. This was unreasonable in the circumstances. Given his multiple health conditions, it is likely it was more difficult for the resident to bathe during the delay period. The evidence shows the new bath contained a shower. From the evidence provided, it was unclear if the resident was able to use it. The increased difficulty accessing washing facilities was unfair to the resident. It is reasonable to conclude his enjoyment of the property was reduced while the delay was ongoing.
- The landlord did not provide copies of the resident’s initial complaint or its contractor’s response. The evidence indicates the resident accepted the contractor’s compensation (around £56) around the time the landlord’s second inspection occurred. It shows the compensation was paid because the contractor removed a shower rail and curtain without his permission. This confirms the contractor’s award relates to a different issue (damage/loss of items). The Ombudsman has not seen enough evidence to fully assess the suitability of the contractor’s compensation. However, no information was seen to indicate its offer was unfair.
- The landlord’s January 2023 inspection report confirms the surveyor agreed the tiling had been completed to a good standard, the tiles were level, and the grouting was well finished. It also shows no plumbing issues were identified at this point. However, it also confirms the decoration work still failed to meet the landlord’s required standards. The landlord’s correspondence shows it emailed the contractor a list of snagging works the day after the inspection. There was no evidence to show the contractor took any further action at this point.
- The resident raised another complaint on 22 February 2023. He said he was “very vulnerable” and it was “disgusting” he was “not able to use (the) bath for 3 months. He said also said the works were still unfinished after 4 months (this wording suggests he was able to bathe from around January 2023). His complaint also referenced quality issues and repeat visits. In related internal correspondence, the surveyor told the landlord they thought the works had been finished previously. They also said none of the snagging issues the landlord previously identified would prevent the resident from using the bath or shower.
- The above information shows the landlord failed to follow up with its contractor about the surveyor’s list of snagging issues. The landlord should have monitored its contractor and the outstanding works accordingly. Instead, the resident had to complain to progress matters. This should not have been necessary and it is reasonable to conclude the situation was inconvenient for him. The landlord’s lack of follow-up was unreasonable in the circumstances. Adequate oversight was especially important due to the previous problems with the contractor’s works.
- In its stage 1 response, from 7 March 2023, the landlord apologised for the overall duration of the works and the related quality issues. It said the contractor would return to the property the following week. This was to renew the bathroom tiling, decorate the walls and ceiling, and complete various sealing works. The response also said the landlord’s timescale for installing new bathrooms was 15 working days. Based on this information, the landlord felt the works should have been completed by 17 November 2022. The landlord also felt the resident was partly responsible for defective grout because he had washed the walls before the grout was dry.
- The Ombudsman was unable to verify the landlord’s 15 working day timescale. However, the wording of its response shows the landlord was aware various delays and failures had occurred over a period of around 4 months (17 November 2022 to 7 March 2023). Given the duration of the delay the landlord identified, and its associated impact to the resident, its apology was not sufficient to put things right for him. The landlord should have awarded him a proportionate amount of compensation to recognise what went wrong.
- The landlord’s stage 1 response also said grab rails would not “automatically have been considered” as part of the landlord’s major works programme. This was on the basis the landlord’s adaptations team was not involved in the works. However, the landlord also said it had raised the matter internally. This was because a wet room had been removed without authorisation from an occupational therapist (OT). The landlord’s internal referral shows it was concerned about the situation.
- In its case evidence to the Ombudsman, the landlord provided its relevant repairs policy (effective May 2022). The policy shows “Disabled adaptations are also included in (the landlord’s) planned works programmes”. It also shows low cost aids such as handrails can be referred straight to the landlord’s repairs team. Based on the information in its policy document, the landlord should have been capable of responding accordingly to the resident’s request for bathroom alterations through its major works programme.
- The above information also suggests the rationale in the landlord’s stage 1 response was unfair and unreasonable. Its repair policy indicates the landlord has provisions for supplying adaptations during major works programmes. Given the circumstances, it is reasonable to conclude that the landlord failed to brief its contractor about how to handle requests for adaptations, or the importance of notifying the landlord about any issues (the contractor) encountered during the programme. This is further evidence of a coordination failure by the landlord, and a failure to have due regard to its obligations under the Equality Act 2010.
- On 14 March 2023 the resident told the landlord he was “becoming suicidal” due to the stress of the situation. Around the same time, he emailed the landlord a supporting medical document. The document shows he had 15 serious health conditions. The resident felt the document confirmed the landlord should have taken his vulnerabilities into account during the parties’ interactions. There was no evidence to show the landlord reacted to the resident’s comments around self-harm at this point. The landlord’s internal correspondence shows the contractor was working at the property on 17 March 2023.
- On 30 March 2023 the landlord issued a brief stage 2 response. It said the landlord’s investigation had confirmed it was “not at fault”. In contrast, the landlord apologised for any misunderstanding around the defective grout. It said the contractor had advised the resident cleaned the area (before the grout was dry), but the landlord was unable “to confirm this one way or the other”. The landlord also said the bathroom works were now complete and matters were resolved. Since it felt the works were complete, the landlord should have calculated the overall delay at this point and redressed the resident accordingly for its failures.
- This would have been more consistent with the landlord’s approach at stage 1. However, the landlord’s stage 2 response failed to acknowledge any delays, failures, or conflicting information. The landlord should have at least acknowledged it previously caused distress by making an unsubstantiated claim about the resident causing damage. This was a clear failure and the landlord should have recognised it as such. Its stage 2 response was unreasonable in the circumstances. It is likely the response was distressing for the resident.
- The resident contacted the landlord’s Chief Executive soon after the response was issued. He said he should have been offered compensation due to the pain (of washing using the sink) and inconvenience caused. He also said he was “on the verge of suicide”. A member of the landlord’s safeguarding team spoke to the resident later that day. Their call notes said he was not at risk and the bathroom was “now fully functioning for his needs”. The notes also said he was now virtually wheel-chair bound and the landlord would refer him to an OT.
- Given the resident’s concerning comments around self-harm, it was appropriate for the landlord’s safeguarding team to contact him and assess the risk. The landlord should have completed these steps as soon as possible. However, the above referenced interaction took place around 12 working days after the resident first told the landlord he was “becoming suicidal”. This was an unreasonable timeframe in the circumstances. Overall, the evidence shows the landlord failed to respond to the resident’s initial comment on 14 March 2023.
- On 17 April 2023 the landlord issued a further response at stage 2. The landlord accepted it was “at fault” for the length of time taken to install the bathroom. Though it partially upheld the resident’s complaint, the landlord emphasised the bath had been installed on 28 October 2022. It also stressed it had no records to show the resident reported a problem until December 2022. On that basis, the landlord rejected the resident’s request for compensation due to a lack of adequate bathing facilities. Other key points from the response were:
- The resident was not responsible for any defective grout.
- The landlord would complete a post-works inspection when the resident confirmed his preferred access arrangements.
- The landlord offered the resident £100 to recognise the “difficulty and stress” (he) experienced during the bathroom installation and the delay” (it later said this was a goodwill payment).
- Subsequently, the resident replied he was incontinent and he had been unable to clean himself properly. He also said the landlord’s offer was contrary to its compensation policy, and he felt its Chief Executive had “bullied” him. In response, the landlord signposted the resident to the Ombudsman. Later, its Chief Executive wrote to the resident on 30 May 2023. They reiterated that the resident should contact the Ombudsman if he remained unhappy.
- The landlord’s relevant compensation policy is available on its website. It shows the landlord can make a discretionary compensation payment in circumstances where it is not legally obliged to pay compensation. The policy also shows discretionary compensation will be awarded as a goodwill gesture and “any financial redress offered will be appropriate to the inconvenience suffered”. Based on this wording, the evidence confirms the landlord’s £100 goodwill offer was inappropriate. It failed to reflect the level of distress and inconvenience to the resident, and it was highly disproportionate given what went wrong.
- The above assessment identified an 11 week delay period where the bathroom lacked grab rails. It found it was likely the resident experienced increased difficulty bathing due to the removal of a wet room and grab rails given his serious health conditions. It also found the landlord failed to have due regard to its obligations under the Equality Act 2010. For the reasons detailed in paragraph 16 above, the evidence shows the landlord did not need specialist knowledge of equalities legislation or advanced knowledge of the resident’s specific health conditions. Its removal of existing grab rails, without consulting an OT, and delay in providing new rails was not consistent with a common-sense approach. It points to a serious coordination failure by the landlord.
- The evidence confirms the contractor was still working at the property on 17 March 2023. This shows the bathroom works were still ongoing around 5 months after the initial installation date. The evidence also shows the resident had to facilitate multiple inspections and repair visits due to related quality issues. It is reasonable to conclude this was both distressing and inconvenient for him. He also had to chase the landlord at various points to progress matters. In addition, the landlord made an unproven assertion that he was responsible for causing damage. His correspondence shows he found this distressing.
- It is accepted the resident’s complaint appeared to develop over time. The contractor initially addressed a damaged shower curtain and rail along with some snagging issues. Later, the resident asked for a significant amount of compensation on delay and on discrimination grounds. There was no evidence to show he reported any similar issues before December 2022. In terms of our assessment, this was a mitigating factor. However, the evidence confirms the landlord should have done more to address the various failures that were highlighted by his complaint.
- Overall, there was severe maladministration in respect of this complaint point. Though it made a limited attempt to put things right, the landlord’s offer of £100 was highly disproportionate given what went wrong. The landlord failed to acknowledge the full extent of its various delays and failures, or the related impact to the resident. This included a loss of enjoyment that occurred because it was more difficult for the resident to bathe for a period. There was no indication the landlord recognised a safeguarding delay of around 12 working days.
- The Ombudsman will order the landlord to pay proportionate compensation to put things right. Our award will reflect the evidence we have seen. In line with our approach to compensation, the Ombudsman’s calculation will include separate elements to reflect the resident’s loss of enjoyment as well as the distress and inconvenience caused. The loss of enjoyment element is based on a flat rate of £50 per week for the corresponding delay period. Aside from the resident’s related comments, no evidence was seen in relation to cold water or a defective thermostatic tap.
The landlord’s complaint handling
- The landlord supplied an undated version of its complaints policy. Since we were unable to find a more relevant document, our assessment used the copy the landlord provided. The document shows the landlord aims to respond to complaints within 20 working days. Based on this timescale, the Ombudsman was unable to evidence any unreasonable delays in respect of the landlord’s complaint responses.
- In his initial complaint to the landlord, the resident said the landlord was responsible for his tenancy and it should liaise with its contractor on his behalf. This was an understandable point in the circumstances. The landlord’s policy shows its complaints procedure did not cover complaints about contractors in the first instance. This is because the landlord allowed its contractors an opportunity to respond before it engaged its own complaints process. Residents could complain to the landlord about a contractor’s response.
- Given the above, it was appropriate for the landlord to refer the resident’s initial (damage related) complaint to its contractor. There was no indication the landlord told the resident to liaise with the contractor about any subsequent issues. This suggests the landlord was aware it was responsible for addressing the resident’s various concerns and it took responsibility accordingly.
- The resident disputed the landlord’s stage 1 response on the day it was issued. He subsequently chased the landlord on 13 March 2023 because it had not replied to his email. He clarified the reasons for his dissatisfaction at this point. It should not have been necessary to chase the landlord for a reply in the first instance. It is reasonable to conclude this caused avoidable inconvenience for the resident.
- Subsequently, the landlord asked the resident to provide an escalation rationale on a number of occasions. On 16 March 2023 the resident replied, “I have now said 3 times I do not accept the part that states… (the resident was partly responsible for damage to the grout)”. This shows the resident later became distressed because he felt the landlord was preventing him from escalating his complaint. The landlord should ensure its processes and complaint handling do not raise unfair barriers to escalation.
- In its stage 2 response, on 30 March 2023, the landlord said its investigation had examined all of the resident’s communications to the landlord. However, the response only addressed his concerns about the defective grout. In contrast, the resident’s escalation rationale (set out over a number of emails around mid-March 2023) included a request for proportionate compensation and concerns around discrimination.
- The relevant version of the Housing Ombudsman’s Complaint Handling Code (the Code) was published in March 2022. Section 5.6 said, “Landlords must address all points raised in the complaint and provide clear reasons for any decisions…”. This shows the landlord’s failure to engage with several key complaint points was inappropriate. It is reasonable to conclude these concerns were important to the resident. The situation was therefore unfair and it likely caused additional distress.
- There were similar problems with the landlord’s additional stage 2 response on 17 April 2023. Though it acknowledged the resident’s discrimination concerns, it did not attempt to unpack them or respond in detail. In response, the resident said the landlord’s investigation lacked thoroughness and the landlord should have questioned him to clarify its understanding. These were understandable points in the circumstances. The landlord should engage accordingly with any serious allegations from residents (such as claims around discrimination).
- Overall, there was maladministration in respect of this complaint point. Following its stage 1 response, the landlord’s inappropriate lack of engagement with key complaint issues prompted additional correspondence from the resident. The evidence shows the situation was avoidable, distressing, and inconvenient. It was also contrary to the Code.
Determination
- In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
- Severe maladministration in respect of the landlord’s response to resident’s concerns about major works to the property’s bathroom.
- Maladministration in respect of the landlord’s complaint handling.
Orders and recommendations
Orders
- The Ombudsman orders a relevant member of the landlord’s executive team to apologise to the resident’s widow. The apology should recognise the key delays and failures identified in this report. The landlord should share a copy of its relevant correspondence/call summary with the Ombudsman within 4 weeks.
- The landlord to pay the resident’s estate a total of £1,200 in compensation within 4 weeks. The compensation should not be offset against any arrears. The landlord may need to see the Grant of Probate (or similar) before it issues the payment. The compensation comprises:
- £550 for the loss of enjoyment caused by the landlord’s removal of existing grab rails and the delay in installing new ones near the bath.
- £450 for the distress and inconvenience caused by the above identified issues with the landlord’s response to the resident’s various concerns about the major works.
- £200 for the distress and inconvenience caused by the above identified issues with the landlord’s complaint handling.
- In accordance with paragraph 54(g) of the Housing Ombudsman Scheme, the landlord should conduct a review of the key failures highlighted in this report. Within 8 weeks, it should present this review to its senior leadership team and provide the Ombudsman a report summarising its identified improvements. The review should include the coordination failure that led to adaptations being removed without specialist guidance or replacements being installed, the safeguarding delay, the landlord’s disproportionate compensation, and its failure to engage with several key complaint issues contrary to the Code. Identified improvements should be cascaded to the landlord’s relevant staff for learning and improvement purposes.
- The landlord should provide evidence it has complied with the above orders within the relevant timescales.