Incommunities Limited (202104446)

REPORT

COMPLAINT 202104446

Incommunities Limited

14 October 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 landlord’s response to the resident’s:
1. Reports of the condition of the property on letting.
2. Reports of repairs to the resident’s property, including missed appointments.
3. Request for communication through her advocate.
4. Reports about staff conduct.
5. Reports of discrimination.
6. Reports of anti-social behaviour (ASB).
7. The resident’s subject access request (SAR).

Background and summary of events

The resident occupied a one-bedroom flat under an assured shorthold tenancy agreement which began on 8 February 2021. It was a “starter” tenancy. The resident is represented in this complaint by one of her support workers who will be referred to in this report as “the SW”. The resident was vulnerable due to mental health issues and past life events.

The legal and policy framework:

Under the tenancy agreement the landlord had an obligation to keep in good repair, maintain and ensure the proper working order of any installations for space heating and/or sanitation. It would carry out all repairs within such reasonable timescales as it may set from time to time in consultation with the resident. The resident was responsible for carrying out small repairs and decoration.
The landlord had a damp and condensation policy but did not appear to have a repairs policy. However, according to the website its response times for repairs were as follows:
1. It would carry out emergency repairs within 24 hours, and minor repairs “on average” within 9 days of being reported. Emergencies included a blocked toilet.
The landlord’s allocations policy set out the circumstances in which it would offer a direct let or management transfer, which included:
1. Where it had a legal obligation.
2. It reserved the right to refuse or defer a transfer application including where the tenancy was a starter tenancy or less than a year old. Emergency transfers would only be considered in exceptional circumstances where it was no longer safe for a tenant to continue living in their home.
3. It would provide additional assistance to applicants who requested help or who had support needs, including a mental or physical disability or where English was not their first language.
Under the void/letting policy, it would carry out health and safety checks, estimate the amount of paint and type available to potential new customers and advise the customer what has been agreed and was available and provide advice regarding free paint and tools. Customers who demonstrated a level of vulnerability with regards to decorating their new home might request assistance at the viewing stage and would be considered on a case-by-case basis. It would provide a handover pack, ensure the property is in reasonable repair including that bathroom fittings were usable and fit for purpose. While internal decoration was the responsibility of the resident, in exceptional circumstances it might provide a decoration voucher.
Under its letting policy, the landlord would clean the property and carry out safety checks. It would not provide carpets.
Under the landlord’s code of conduct, it set out that staff had an obligation to comply with the landlord’s policies and procedures relating to equality and diversity. It referred to further guidance.

Chronology

The tenancy began on 8 February 2021.
According to the landlord’s repair records, operatives attended on the following days, but access was not provided: 12,16, 18 and 22 March 2021, 19, 20, 22 and 29 April 2021, 13 May 2021, 8 June 2021, and 5 July 2021.
The below is extracted from the landlord’s repair and diary records, and contemporaneous correspondence, unless stated otherwise. Where it is not specified who made the report, the report is attributed to the resident herself.
1. Various repairs were carried out shortly before the resident moved in.
2. On 17 February 2021, the landlord repaired a leak to the toilet. On 23 February 2021, the resident confirmed everything was in order in the property. The resident reported on 16 April 2021 that the toilet was blocked. The landlord attended on 16 April and 29 April 2021 but did not get access. The resident stated she did not require the repair. The resident reported on 3 June 2021 that the toilet was blocked. According to the complaint response, the landlord attended the same day but did not get access. The landlord attended on 8 June 2021 but did not get access. On 10 June 2021, an appointment was made with the support worker for the following afternoon. On 11 June 2021, the plumbing job to replace silicone on the toilet was re-arranged for 23 June 2021 when access was not provided, although the repair records had the job marked as completed. According to the complaint response 28 June 2021, the repair was postponed to 5 July 2021. According to the landlord’s repair records and a drop card, access was not provided.
3. On 2 March 2022, the SW reported that walls were not painted, and there were no carpets or curtains. There were multiple small holes in the walls and doors. The landlord explained that it did not provide carpets or paint properties however it provided a paint pack. The SW also complained of the heat in relation to the communal heating. He said the neighbourhood was subject to drugs and ASB issues. He said the landlord had not taken into account her mental health issues when accepting the resident had said she was happy with the property.
4. The resident reported that the toilet pan was stained on 8 and/or 25 March 2021. The landlord attended on 12 March 2021 but did not get access. It attended again on 6 April 2021. According to the complaint response, the landlord attended on the same day and ascertained that the pan did not require changing. A job raised and/or reported on 28 June 2021 to replace the pan was to have been carried out on 5 July 2021. Access was not provided.
5. The resident reported on 16 March 2021 that a part was missing to her cooker. The cooker repair was classed as an emergency, The landlord attended to inspect on 16 March 2021 and 23 March 2021 but access was not provided. The cooker was addressed on 25 March 2021.
6. The resident reported on 9 March 2021 that the bedroom ceiling plaster was peeling. A plastering job was raised for 18 March 2021. Access was not provided. The job was raised again on 13 May 2021 but cancelled.
7. During March 2021, the landlord took steps to verify the SW’s authority to discuss the tenancy, which was resolved on 24 March 2022. It made arrangements to offer interpreter services in the meantime.
8. A tenancy visit took place on 18 March 2021. The assessment checklist for the property stated that the purpose of visit included to identify the resident’s needs, their preferences, and to agree any actions. It noted it had tried to visit on 9 March 2021. As the resident did not speak English very well, it was agreed it would liaise with the resident’s support worker.
9. The checklist noted that there were nails in the wall, the toilet was stained, the bedroom ceiling paint was flaking and there was no cooker terminal. The checklist also noted that all the relevant jobs had already been logged. It also noted that the resident reported there had been no issues with her neighbours or ASB.
10. On 24 March 2021, the SW reported that the door entry system did not function and that the resident did not have the necessary fob. A job was raised accordingly on the same day. The records noted that there was no evidence that the landlord had sent a notice regarding access on 12 March 2021. The SW chased a site inspection, which the landlord actioned accordingly.
11. The landlord removed the screws and nails in the walls and doors of the property on 15 April 2021. A job was raised to overhaul the balcony door. The landlord attended on 19 April 2021 but was not given access, the resident stating she did not want the repair. The decorator was to apply stain block on 13 May 2021 but was not given access. A plasterer was due to carry out replastering on 20 April 2021 but was not given access.
12. On 18 March 2021 a job was reported and raised to wire in the cooker Access to do so was not provided on either 16, 23 March
13. On 16 April 2022, a job was reported to move the cooker outlet so as to accommodate the resident’s fridge and overhaul the smoke detector. Access to do so was not provided on 22 April 2021, 7 May 2021, 25 June 2021 or 5 July 2021.
14. On 3 June 2021, the resident reported that she was unable to turn off the heating. The contractor reported on 24 June 2021 that it had attended on 8 June 2021 and found that none of the radiator valves heads worked. It turned off the valves with a spanner and ordered new valves. It re-attended on 13 July 2021.
On 8 June 2021, the resident’s support worker contacted the landlord to report that there were outstanding repairs. The landlord explained that the resident had not provided access. According to the landlord’s internal emails, it had made a number of efforts to gain access that day. It noted that the appointment should have been made with a support worker, due to the resident’s personal circumstances. It expressed sympathy for the resident and rearranged the plumbing job booked for 8 June 2021 through a support worker. It ensured that the agreement to arrange jobs through a support worker was recorded and it increased the time estimate for the job.
On 15 June 2021, this service relayed the resident’s complaint to the landlord as follows:
1. The condition of the property, including plaster damage to walls and ceilings, stains on walls due to previous leaks, safety issues due to faulty intercom, radiators excessively hot.
2. The resident had no toilet access for a lengthy period and it would leak every two to three days.
3. The area was “filled” with crime and drug activity.
4. Workmen would schedule appointments and fail to attend.
5. The landlord kept involving members of staff that the resident had refused to interact with, due to the impact those staff members had had on her mental health.
6. The resident felt discriminated against due to the condition she had “been forced to tolerate”.
7. The landlord kept visiting the property without the authorised third-party present, knowing the distress this would cause the resident as communication was limited.
8. The issues that the resident had experienced had led to mental breakdown and left mental health issues.
9. The resident required
  1. A full written apology.
  2. Compensation.
  3. A transfer to alternative accommodation.
  4. An explanation as to why the landlord has ignored the authorised third-party, knowing the vulnerabilities of the resident.
10. The landlord should respond to the resident by 29 June 2021.
The resident or SW provided to this service photographs of flaking paint and missing plaster when relaying the above complaint.
On 28 June 2021, the landlord wrote to the resident with its complaint response as follows:
1. It set out the history of the repair and works to the toilet and cooker and intercom. It apologised for the delay in issuing the fob and had put a more effective process in place.
2. It enclosed a list of the aborted repair jobs with photographs in support of drop cards appended to the resident’s door.
3. In relation to the suitability of the property, the landlord had explained, including at the tenancy sign-up, its policy regarding carpets or curtains, furnishings, decoration and white goods. It set out the repairs that had been booked including replastering, removing screws and nails from walls and doors on 15 April 2021.
4. In relation to the resident’s mental health, her social worker (sic) had supported her through the signup process.
5. The landlord had attended the property on 31 March 2021 and agreed further works which were not priority repairs and would be carried out in accordance with its policies.
6. On 20 April 2021, it was agreed that repairs would be booked with her support worker. It apologised that on one occasion a job was not booked with the support worker. It suggested it dealt with only one support worker or agency in order to avoid miscommunications.
7. It had not identified a request for certain staff not to contact her. It reassured the resident the staff had signed up to the landlord’s code of conduct and values.
8. It had not received any reports of anti-social behaviour but would address any such reports and provided details of how to make them.
9. It provided suggestions regarding rehousing. It could not offer a direct let as she did not meet its criteria and attached the relevant policy.
10. It expressed regret the resident had felt that she had had to complain, in addition to the stress of a move.
The resident’s representative wrote on 5 July 2021 requesting that the landlord escalate the complaint to stage 2 as the resident and the representative were dissatisfied with its response.
The landlord wrote on 13 July 2021 requesting details of which aspects the resident was dissatisfied with and on 15 July 2021 to explain why it required this.
On 15 July 2021, the landlord wrote to say that it would reply within 10 working days and why it required further details. In relation to the SAR request, this was not part of the complaint and, in any event, it required a specific request from the resident.
On 16 July 2021, the SW stated he/the resident was concerned that the investigation was biased. He had requested that no staff who had previous dealings or “those with affiliations” with such staff should not be involved in the investigation. The complaint was about disrepair and “major elements of racial discrimination” given the “lack of seriousness” being shown, which had caused the resident anxiety and stress over the previous months. The SW stated that his agency’s legal team would be dealing with the SAR.
On 29 July 2021, the landlord wrote with its second stage response as follows:
1. It summarised the representative’s reasons for escalation which included that health and safety information was not provided to the resident at the start of tenancy.
2. It repeated its response regarding the repairs and the instances of the resident not providing access. It set out the repair history.
3. In relation to not accepting the SW as an authorised third party, it accepted that the call on 24 March 2021 could have been handled better. It was not the intention to discriminate against the resident.
4. It apologised it referred to the incorrect description of the person attending at the sign-up.
5. She had returned the keys to her property on 9 July 2021.
The SW reported to this service further issues that were not part of the complaint, including that the landlord did not provide a full induction to the property to explain what services were available in the property.

Assessment and findings

The evidence showed the landlord raised the repairs and attended to carry out the repairs within its policy timescales and within a reasonable period, given the nature of the repair, including to the cooker and the toilet, and the circumstances of the case. The account in the landlord’s complaint responses were reflected in the repair records.
The landlord acted promptly in rectifying its acknowledged error in not having issued an entry fob to the resident at the outset.
The Ombudsman is limited in the extent to which it can rely on photographic evidence as it is not possible for this Service to determine the location/circumstances of the photographs, or the validity of the images themselves. As a result, we do not generally place significant reliance on photographs in reaching our decisions.
However, the resident’s photographs indicate that there was flaking paint and missing plaster, and some small holes in walls. It was not disputed that the property required plastering works. If the photographs are accurate, the landlord should have considered carrying out the more significant replastering prior to letting. However, the photographic evidence is not sufficient upon which the Ombudsman can make a finding, and moreover, the landlord responded promptly to the resident’s reports and attended within a reasonable period.
The evidence showed that some of the delays in carrying out repairs were due to the then Covid-19 pandemic. Other delays were due to the resident not giving access. The evidence indicated that this was due to miscommunication on two occasions, of which the landlord had identified one and apologised, which, in the circumstances, the Ombudsman considers to be an adequate response. Some of the difficulties with access may have been due to the resident’s entry system not working on occasion. On other occasions, the evidence showed that the resident specifically declined access. While the Ombudsman has sympathy with the resident for her reasons not to grant access, we do not attribute fault to the landlord. The evidence showed that once it was aware of the circumstances, the landlord took steps to accommodate the resident’s needs. Its request to communicate with a single third-party support agency was reasonable. It also arranged an inspection and repair of the entry system on it being reported.
The landlord’s explanation that the decoration, including the holes in the walls, the carpets and curtains was the responsibility of the resident’s reasonable. The evidence showed that the landlord reasonably explained its position to the SW on a number of occasions. Not only was this set out in tenancy agreement and, in broad terms, in the policy, but it is standard sector practice. The landlord, nevertheless, acted reasonably in using its discretion to provide a paint pack and to attend to repair the walls. While the lettings policy was clear about the procedures on signup, the Ombudsman was not provided with the note of the meeting when the resident signed the tenancy agreement. The landlord’s records were otherwise comprehensive. The Ombudsman will make a recommendation in relation to noting its communications at sign-up, possibly with the use of an expanded checklist.
The landlord’s response to the report there was ASB in the area was reasonable. The resident had not reported any concerns at the visit on 18 March 2021 in response to a specific question in the checklist. The SW did not make any specific reports, only generalised comments about the locality of the property, upon which the Ombudsman would not expect a landlord to be able to act. The landlord, however, reasonably provided details on how to report any incidents.
The landlord’s response to the resident’s request to move was again reasonable and appropriate. The response accorded with its policy to offer a move only in specific circumstances. It provided advice on rehousing. The Ombudsman would have expected the landlord to have considered being proactive in that regard, given the resident’s first language was not English, however the resident moved very soon after.
It is outside the Ombudsman’s remit to establish whether the actions, or inaction, of the landlord’s staff amounted to racial discrimination as it is not possible for this Service to make an assessment of an individual’s motives. Moreover, allegations of discrimination, including racism, are legal issues better suited to a court of law to decide. The Ombudsman can assess whether the landlord’s overall communication with, and responses to, the resident were appropriate, fair and reasonable. This includes its assessment and investigation into her concerns about alleged racial discrimination.
The resident’s complaint was framed as a general comment that the landlord’s failures she complained of were due to discrimination. There was no evidence that supported that conclusion. There was evidence that the landlord sought to accommodate the fact that English was not the resident’s first language by seeking to liaise through a third party and considering and offering an interpretation service. While it did not analyse the assertion of discrimination in any detail, it reassured the resident that no discrimination was intended. The Ombudsman considers that an allegation of racial discrimination is serious. Generally, in these circumstances, the landlord should consider whether to make further specific enquiries. In this case, while it did not make further enquiries into the issue, it had invited the SW to provide more specific information about the complaint. The issue of discrimination is recognised within the landlord’s Code of Conduct. In the Ombudsman’s view, the landlord demonstrates its understanding by its recognition that English not being a first language constituted a support need. In this case, there was no evidence of discrimination and the allegations was very generalised, While no fault is attributed to the landlord in this case, the Ombudsman will make a recommendation in any event.
The landlord’s explanation for a delay, or gap, in accepting the SW’s authority to act was reasonable. The landlord had an obligation as a matter of data protection and good practice to ensure any third party it was sharing the resident’s information with and was making representations on behalf of, had the resident’s authority. There was no evidence that the resident had requested particular members of staff not to contact her. The landlord’s explanation in that regard was therefore also reasonable.
While a SAR is not within the Ombudsman’s jurisdiction, the Ombudsman can investigate and assess the landlord’s response. It was reasonable that, due to data protection, the landlord would seek specific authorisation before releasing all its records. There was no evidence this was forthcoming. In any event, the SW stated that he would refer the matter to the agency’s legal department.
The Ombudsman cannot assess the extent to which a landlord’s service failure or maladministration has contributed to or exacerbated a complainant’s physical and /or mental health. It would recognise any overall distress and inconvenience caused to a complainant in the event of a relevant service failure by a landlord. In this case, the Ombudsman has not found any service failure. In addition, the evidence shows that the landlord gave consideration to the resident’s vulnerabilities and the resident was accompanied and supported by support workers.
The lack of a comprehensive induction was not part of the resident’s complaint, therefore this falls outside the scope of this investigation. The Ombudsman only investigates complaints that have been made to the landlord and to which it has had an opportunity to respond. However, it is also noted that the SW raised in the complaint whether the resident had been provided with information about health and safety information, which issue was not addressed in the landlord’s final response. There was no evidence of the discussions that took place when the resident signed the tenancy agreement on 8 February 2021. However, the Ombudsman will make a recommendation in that regard.

Determination (decision)

In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s:
1. Reports of the condition of the property on letting.
2. Reports of repairs to the resident’s property, including missed appointments.
3. Request for communication through her advocate.
4. Reports about staff conduct.
5. Reports of discrimination.
6. Reports of anti-social behaviour.
7. The resident’s subject access request.

Reasons

The landlord responded promptly to the resident’s reports of disrepair, and it exercised its discretion in relation to the decoration of the property. Fault for the delay in carrying out the repairs is not attributed to the landlord. Its reasons for not offering a move, the delay in communicating with the SW, and not acceding to the SAR were reasonable. There was no evidence of specific reports of ASB or that the resident requested no contact from certain staff, for the landlord to act on.

Recommendations

The Ombudsman makes the following recommendations:
1. The landlord should consider replastering prior to letting properties, for example where there are gaps in the walls.
2. The landlord should ensure, if it does not do so already, that it keeps a comprehensive record of the issues it has covered on signing of a tenancy and any ensuing first inspection, in order to ensure and record that it had addressed the issues on sign up as set out in its lettings policy, and other issues, as it sees fit.
3. The landlord should ensure that it centrally records any agreed special request of the resident that would be required to accommodate their vulnerability, if the resident wishes it to do so.
4. The landlord should consider, in cases where discrimination is alleged, whether to make further enquiries
The landlord should notify the Ombudsman of its intentions regarding these recommendations within 28 days of this report.