Islington Council (202310041)
REPORT
COMPLAINT 202310041
Islington Council
23 August 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
- The complaint is about the landlord’s handling of the resident’s concerns about the accessibility of an exit barrier to his estate.
- The landlord’s complaint handling has also been investigated.
Background
- The resident has a secure tenancy with the landlord, a local authority at the property. The property is a one-bedroom ground-floor flat in a building owned by the landlord on a council estate. The estate has a Tenant Management Organisation (TMO) responsible for providing some housing services. The nearest access point to the resident’s property from the estate is through a pathway that includes a barrier installed around 15 years ago and designed to deter cyclists and motorcycles from travelling at speed. The landlord is aware that the resident suffers from arthritis in his hands and legs and uses a mobility scooter.
- On 14 December 2021 and 18 January 2022, the resident raised concerns with the landlord that the barriers on the access point near to his home were “too small.” He said he was unable to get his mobility scooter through the barrier and had to go “right around the block” to get into the estate. From this point until 13 July 2022 the landlord and TMO investigated the resident’s concerns. The resident raised his concerns with a local councillor during this period. The landlord provided updates on its findings to the resident throughout this period including the TMO’s final advice and the internal legal advice it had obtained on the issue on 14 July 2022.
- The landlord met with the resident on 9 August 2022 and talked through the layout of the barrier and why any changes to it would make it “ineffective.” The resident told the landlord there “should be some solution to allow access for him and other residents with mobility scooters.” The landlord accepted the resident’s dissatisfaction as a complaint. It provided its stage 1 complaint response on 24 August. The landlord stated the following:
- The TMO was unable to remove the barriers due to the “danger to pedestrians.” The TMO had told the resident there were alternative accessible access points to the estate that the resident could use. It acknowledged this was a longer route for the resident using his mobility scooter.
- It had sought legal advice and found when it initially installed the barrier there was no requirement to undertake an equality assessment, as such there was no breach of the Equality Act. As the Equality Act was introduced after the barrier was installed. It said “it was not reasonable or financially viable for (the landlord) to replace or remove all existing street furniture that does not comply.”
- Although not its statutory duty it looked to see if it could make changes to the barrier to allow access for mobility scooters and restrict cyclists. It considered multiple options which culminated in a visit to the site with the resident on 9 August. The landlord explained at this visit there was insufficient space for a barrier that “allows access whilst providing protection from cyclists.” It confirmed at the visit cyclists were observed slowing down or dismounting to pass the barrier. Removing it would be an “unacceptable risk to pedestrians using the path.”
- The landlord partially upheld the resident’s complaint for the “delay in providing definitive advice on the matter.” It offered £75 compensation for the distress caused. It found no evidence it had breached its policy or failed to follow its procedure.
- The resident escalated his complaint on 30 August 2022 stating the landlord could “move the barrier by 500mm to enable his mobility scooter through” and “was not willing to accept the landlord’s points about health and safety risk.” The landlord considered his points and raised the escalation on 6 September. It told him on 7 September it had a “large number of requests” and was unable to immediately begin investigating his complaint. It told him on 30 March 2023 that it would provide its stage 2 complaint response within 20 working days. It provided its stage 2 complaint response on 9 May 2023. Its response reiterated much of its stage 1 complaint response. It did address the following:
- It confirmed the minimum recommended width for the barriers was between 1.2m and 1.5m. The narrowness of the path meant minimum widths were not possible and any adjustments would not be effective against speeding cyclists, motorbikes, or mopeds. This would create a “health and safety issue” and “put others at risk.”
- It did not uphold the resident’s complaint and despite a thorough investigation it was not able to find a resolution to the resident’s concerns. It offered a further £100 compensation for its delayed stage 2 complaint response. Across both complaint responses it offered total compensation of £175.
- The Ombudsman accepted the resident’s complaint for investigation on 9 February 2024. In correspondence with the Ombudsman, the resident said he “remained unhappy” with the landlord’s response and he believed “something could be designed by the landlord for the barrier.”
Assessment and findings
Scope of assessment.
- The resident’s complaint related to a barrier that was outside of the property. The barrier in question is situated in an alleyway near to the property and on an estate that the landlord, a local authority, confirmed comes within its remit to manage. The landlord had installed the barrier in order to manage the risk of motorcycles and cycles using this alleyway so that these vehicles could either not use the alleyway at all or would have to reduce their speed considerably in order to access the estate from this entrance point. This aspect of the complaint, regarding the local authority having taken steps to mitigate risk to pedestrians on the wider estate is not within this Service’s jurisdiction as it relates to the local authorities wider service obligations.
- The Housing Ombudsman Scheme (paragraph 34) confirms that we will look at complaints that relate to a qualifying tenant’s occupation of a property. Paragraph 41 of the Scheme also confirms that we will not look at complaints involving Local Housing Authorities that do not relate to their provision or management of social housing. In this instance, the complaint is only within the Ombudsman’s jurisdiction in the context of the resident’s concerns that the barrier prevented him from accessing his home as this is the context within which it relates to both his occupation of the property as well as the landlord’s provision and management of his social housing tenancy. Any aspects of the complaint that do not sit within the remit of this Service may be issues that the resident can progress with the Local Government and Social Care Ombudsman (LGSCO).
The exit barrier to the housing estate.
- The tenancy agreement between the resident and the landlord confirms the landlord is responsible for keeping access paths and steps to individual properties in “good repair.” No further information is given on the responsibility of access to individual paths surrounding the resident’s property.
- The landlord’s website confirms TMO’s enable tenants in a particular estate to “manage the services provided to their homes.” The landlord continues to own the property and tenants “keep their secure tenancy.” TMOs have a contract with the landlord that is called the “management agreement.” This sets out which services the TMO will manage and which the landlord will manage. TMOS have their own complaints procedure which is enacted prior to the landlord’s internal complaints procedure being enacted.
- The resident initially raised his concerns about the access barriers on 14 December 2021. He stated he had to travel “right around the block” to access his home. As such despite the resident’s concerns with the barriers, both him and the landlord were aware from the first report that the resident was not impeded from accessing his home and had an alternate access point. The resident was reporting the barriers were inconveniencing his access to the estate, which is not being assessed in this report. Following the initial report the landlord took proactive steps to address the resident’s concerns and seek a resolution.
- The landlord acted in accordance with its policy in getting the TMO to respond to the issue raised from 1 February 2022. This was due to it finding the TMO was responsible for the installation of the barriers. Whilst the TMO investigated the landlord worked with them throughout the process and liaised between the TMO, the resident and the councillor throughout. The TMO would eventually find on 3 February 2022 that it would not re-site the barriers due to the danger from speeding cyclists and mopeds on the public and other residents using the pathway. The landlord ensured on 4 February 2022 that the TMO provided its decision to the resident in writing.
- Following the TMO decision the landlord sought advice on whether the pathway was a public highway to guide what action it should take. It found on 3 March 2022 from the highways and traffic service for the local authority the pathway was a public highway. It was advised the maintenance of the pathway was its responsibility as the landlord. From this point, the landlord appropriately considered if it could make changes to the access gate. The councillor supporting the resident asked on 25 March if a “chicane of planters” could be used instead of the barriers. It would enlist a contractor to decide on a number of alternatives to the barriers. However, it found on 14 July that there was “no solution” to allowing access for a mobility scooter whilst deterring or slowing cyclists or mopeds. It explained this to the resident on 14 July and councillor on 18 July. It also took the appropriate step of speaking to other local residents about proposed changes who raised concerns about “vehicles passing through the estate at speed.” It explained this as part of its justification on 14 and 18 July.
- The landlord also sought legal advice to understand its obligations under the Equality Act 2010 It found on 20 April 2022 when the barriers were originally installed there were no legal requirements to complete equality assessments and that it was not retrospectively required to do this. It found it was not reasonable or financially viable for it to review, replace or remove existing street furniture, but would have to ensure street furniture complied if it completed any renewal works. It shared this information with the councillor acting as the resident’s representative on 29 April and also clarified this directly to the resident in its stage 1 and stage 2 complaint responses.
- The landlord took the appropriate step of meeting the resident on site on 9 August 2022 to talk through its decisions and why it was unable to take any further action to change the barriers. This was an effective way to help the resident understand its approach as it was able to reference the difficulties on the site on location and the attempt it had made to balance the resident’s concerns about accessibility against the wider health and safety of the pathway.
- The landlord’s stage 1 and 2 complaint responses were comprehensive on the accessibility concerns and its decision-making. This was reiterating much of the decisions it had made between 14 December 2021 and 9 August 2022 which it had already communicated to the resident. Both complaint responses provided sufficient information to fully explain its decisions and fully addressed all the concerns raised by the resident.
- The landlord offered compensation of £75 for the “delay in responding to (the resident’s) query” and the distress caused. Its Compensation Policy states awards for distress should be between £100 to £300 but does provide a caveat that “each case is different”. Its overall response to the resident was delayed; however, the Ombudsman acknowledges the landlord obtained different complex information such as legal advice and plans to rectify the barrier. The landlord did communicate with the resident at each stage of this, but the whole process was prolonged due to this. As such the Ombudsman finds the £75 awarded by the landlord as appropriate. As in accordance with the Ombudsman’s remedies guidance, there was minimal impact on the resident without any significant impact on the outcome.
- In summary the Ombudsman finds there was no maladministration in the landlord’s handling of the resident’s concerns about the accessibility of an exit barrier to his estate. There is no evidence the resident was ever unable to access his property. The landlord sought to address the resident’s concerns about the inconvenience caused to him by having to enter the estate via an alternate access point. Its approach to providing a final response was prolonged. However, the Ombudsman appreciates the complexity of the information the landlord was obtaining. It took appropriate steps to consider its obligations under the Equality Act and investigated further options for altering the barrier. These steps helped it to consider what actions it needed to take to reduce the inconvenience reported by the resident. When it reached a final decision on each of its findings it communicated appropriately with the resident and the councillor representing him, treating him respectfully and fairly.
Complaint handling.
- The landlord’s Complaint’s Policy confirms it aims to provide its customers with services that are of a “consistently good quality.” It recognises the importance of complaints in achieving this. It states a well-managed complaint service can reassure residents it is:
- Listening to concerns and taking them seriously.
- Learning from mistakes and using lessons from complaints to help improve services.
- Committed to providing good customer service and making sure complaints are investigated fully and fairly.
- The policy confirms the landlord will attempt to resolve informally before they reach the formal stage of its procedure. Its formal procedure has two stages:
- Stage 1 which is investigated and responded to locally by the service area in which the complaint originated. It will acknowledge a complaint in 3 calendar days (excluding bank holidays). It will provide its response within 10 working days of registering the complaint. If it is unable to meet this timescale it must send a holding reply explaining the delay with an expected due date.
- Stage 2 which is investigated by the landlord’s Corporate Customer Service team on behalf of the Chief Executive. Once an escalation request is accepted the landlord will acknowledge it in 3 calendar days (excluding bank holidays). It will provide its complaint response in 20 working days.
- The policy confirms that TMOs have their own complaints investigation procedures. They are required to log complaints on the landlord’s complaints system and respond within the complaint timescales in its policy. The landlord’s Support and Compliance Team monitors established TMOs.
- The resident initially raised his concerns on 14 December 2021 and made his formal complaint to the landlord on 9 August 2022. Between these dates, the Ombudsman has seen evidence of the landlord attempting to deal with the complaint informally as per its Complaints Policy. It provided responses to the councillor (on the resident’s behalf) or resident on 18 February, 14 March, 24 May, 6, 14 and 18 July. Its responses explained its current position and what action it would take next.
- Throughout the period 14 December 2021 to 9 August 2022, it is believed the TMO provided its complaint response to the resident in accordance with the landlord’s Complaints Policy. These responses have not been made available to the Ombudsman, so they have not been considered. However, there is evidence of the landlord appropriately advising the TMO on 4 February 2022 that it had to respond to the resident’s concerns and its decision in writing. The landlord shared the TMO’s decision in its replies of 18 July 2022, 24 August 2022, and 9 May 2023.
- The landlord raised the resident’s concerns as a complaint on 9 August 2022 after it had explained its findings on location with the resident. This was the appropriate step to take as it told the resident it could offer no further explanation and the next step would be its complaints process. There is no evidence the landlord acknowledged the resident’s complaint. This was not in accordance with the landlord’s Complaints Policy. However, there was confusion with the landlord internally on 16 August which suggests why it failed to acknowledge the complaint. It said on this date it had not received a formal written complaint from the landlord. The staff member who spoke with the resident on 9 August confirmed due to his health the resident was not comfortable writing. It said the escalation should be the verbal one it took on 9 August. Its actions appropriately applied a reasonable adjustment to support the resident under its equality obligations. However, its inefficient communication of this delayed its acceptance of the complaint and provision of an acknowledgement.
- The landlord provided its stage 1 complaint response on 24 August 2022 this was equivalent to 11 working days. This was a slight departure from its policy which confirms it should respond in 10 working days. There is no evidence it informed the resident it would be delayed in responding which it should have done to manage the resident’s expectations in accordance with its policy. It failed to acknowledge either of these things in its response to ensure it was “learning from mistakes.” It should have identified the need to manage the resident’s expectations on 16 August and communicated with the resident about when it would reply. The landlord’s stage 1 complaint response was comprehensive and covered all points raised by the resident from his initial concerns on 14 December 2021.
- The resident escalated his complaint on 6 September 2022. It confirmed receipt of the complaint the following day. Its response advised the resident its response would be delayed. However, it failed to appropriately inform him when it was likely to reply. This caused uncertainty to the resident over whether it was taking the complaint seriously. The landlord did not update the resident for 205 calendar days following this. It provided its stage 2 complaint acknowledgement on 30 March 2023. Its ambiguous response on 7 September 2022 and its failure to update from then to 30 March 2023 caused further uncertainty to the resident on whether it would respond.
- In its complaint acknowledgment of 30 March 2023, the landlord told the resident it would reply within 20 working days. This meant it should have replied by 28 April. It did not reply until 9 May 2023 which was equivalent to 25 working days. There is no evidence the landlord contacted the resident to explain it would be delayed in responding or that it provided him with a proposed reply date. This and its delay in responding was not in accordance with its Complaints Policy.
- The landlord’s stage 2 complaint response was comprehensive and reiterated its position at its stage 1 complaint response. It appropriately addressed further concerns the resident had about moving the barrier and its health and safety considerations. The landlord offered £100 for the delay in providing its stage 2 complaint response. This was in accordance with its Compensation Policy which suggests awarding compensation of £100 to £300 for time and trouble encountered by the resident.
- The £100 compensation was appropriate for the delayed stage 2 complaint response. However, there were a number of other complaint handling failures identified in this report that the landlord should have considered compensation for, as follows:
- It failed to formally acknowledge the resident’s stage 1 complaint and that it was delayed in responding, albeit only slightly.
- It failed to communicate or update the resident at all from 7 September 2022 to 29 March 2023 to inform him of the position of his complaint.
- When it was delayed in responding at both stage 1 and stage 2 it failed to manage the resident’s expectations on when it would respond. It should have done this in accordance with its policy.
- A landlord’s complaint process enables them to learn from issues and identify trends so it can take preventative action and learn from this. The landlord failed to adhere to its own Complaints Policy in its stage 1 and 2 complaint response time and its communication with the resident. A determination of service failure has therefore been determined. To reflect the resident’s distress and inconvenience due to the landlord’s failures, £200 compensation has been ordered. This is an additional £100 to the £100 previously awarded by the landlord. This is in line with the Ombudsman’s guidance in relation to cases where service failure has occurred over a protracted period with some impact on the resident throughout that period.
Determination
- In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in respect of the landlord’s handling of the resident’s concerns about the accessibility of an exit barrier to his estate.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in respect of the landlord’s complaint handling.
Orders and recommendations
- The landlord shall carry out the following orders and must provide evidence of compliance within 4 weeks of the date of this report:
- Pay the resident a total of £200 in compensation for the distress and inconvenience caused to the resident by the landlord’s delays and inefficient complaint handling. Compensation should be paid directly to the resident and not offset against any arrears.
- The above amounts include the £100 previously awarded by the landlord.
- Pay the resident a total of £200 in compensation for the distress and inconvenience caused to the resident by the landlord’s delays and inefficient complaint handling. Compensation should be paid directly to the resident and not offset against any arrears.