London Borough of Camden Council (202401963)

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REPORT

COMPLAINT 202401963

Camden Council

26 September 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

  1. The complaint is about the landlord’s handling of a notice to remove fencing from outside of the resident’s property and the landlord’s conduct of a visit to the property.
  2. The landlord’s complaint handling is also considered.

Background

  1. The resident has an assured tenancy that was signed on 18 February 2022. The landlord is a local authority. The property is a ground-floor, 3-bed property, which the resident shares with her children. The resident’s daughter is autistic and the resident has a number of health issues.
  2. The landlord conducted a fire risk assessment (FRA) at the resident’s building on 22 November 2022. Among the issues identified in the report were the presence of various combustible items in and outside of the building. The report recommended these items be removed.
  3. The resident contacted the landlord on 29 September 2023 the after receiving a letter advising she should remove items from her patio. The resident asked for clarification as to why her patio was considered a communal area.
  4. On 12, 13, 23, 27 October 2023 the resident’s social worker contacted the landlord about the fencing at the resident’s property. The social worker said this had been deemed a fire hazard and asked if it could be replaced to preserve the family’s privacy. The social worker said the fencing provided a private outdoor space for the resident’s daughter, who was autistic and had social anxiety. The landlord has not provided contemporaneous records of any response to the social worker’s emails. The landlord has said subsequently that it responded via ‘Microsoft Teams’ and confirmed it would attend the property, which it did on 31 October 2023.
  5. The social worker contacted the landlord thereafter and expressed concern that it visited when the resident was at work. The social worker said this resulted in the daughter becoming extremely distressed. The social worker has said she then had a conversation with the landlord about the need to contact residents with additional needs prior to any visit.
  6. The resident raised a formal complaint to the landlord on 3 November 2023. The resident said she had been asked to remove the fencing from the patio area as it did not comply with the landlord’s fire safety policy. The resident said she told the landlord she was concerned about the effect this would have on her daughter, who was autistic. The resident said the landlord did not respond to her emails and therefore her social worker contacted the landlord to explain the fencing allowed the resident’s daughter to access outside space and contained her daughter’s support dogs. The resident said she was advised the landlord would contact her to arrange an inspection, however, the landlord attended without prior notification. The resident said she was at work at the time, but her daughter was at home. The resident said the landlord spoke with her daughter about the issue, which caused the daughter to have a panic attack. The resident asked for a copy of the FRA and the report from the landlord’s visit to her property.
  7. The landlord provided a stage 1 complaint response on 27 November 2023. The landlord apologised for any distress caused by its visit and for the delay in providing a complaint response. The landlord said the FRA applied to communal areas and it did not normally make appointments to conduct assessments. On this occasion, due to the concerns raised by the social worker it attended to review the issue. The landlord said that “as a courtesy”, operatives knocked at the door and was told by the daughter the resident was not home. The landlord said the daughter was not distressed but apologised if she was anxious thereafter. The landlord said that it had met with the social work team, implemented ‘lessons learned’ and would not attend any future such cases without a social worker. The landlord said the FRA had identified the fencing as combustible and this needed to be replaced with non-combustible materials to provide privacy and reduce the fire risk. The landlord provided a copy of the FRA.
  8. The resident raised a stage 2 complaint on 3 December 2023. The resident disputed the landlord’s account of the visit. The resident said her flat was not a communal space, the FRA did not mention the fencing, and there were combustible PVC doors and windows in the building. The resident asked for her daughter’s needs be considered, and said the fencing provided privacy and allowed her daughter to access the outside space. The resident said she could not afford to replace the fencing and asked if fire retardant paint could be applied instead.
  9. The landlord provided a stage 2 response on 21 December 2023. The landlord said that prior to the visit it had liaised with the social worker but was not instructed to only attend when an adult was present. The landlord said that while it was assessing the fence panels the resident’s daughter asked what it was doing. The landlord said it told the daughter it was assessing the panels and asked her to tell the resident it had attended. The landlord apologised for the miscommunication in the previous response. The landlord said the fencing was identified in the FRA, which was provided to the resident with the stage 1 response. The landlord said actions from the FRA, including addressing the PVC windows and doors would be completed by 31 May 2025. The landlord said the fencing could be painted with a fire-retardant paint but the ‘fire load’ in the area also needed to be reduced. The landlord said it could meet with the resident to discuss the options and would contact her to arrange this. The landlord partially upheld the resident’s complaint and apologised for the distress caused to the resident’s daughter. The landlord said it was sorry for the “miscommunication” in its stage 1 response and said it was regrettable that no information was provide to the landlord highlighting that special arrangements were required for an inspection.

Events after completion of the ICP

  1. The resident contacted the landlord on 3 January 2024 and said she would like to meet to discuss options for the fence, including fire retardant paint. The landlord responded and said it would be in touch to arrange a meeting. On 20 February 2024 the resident told the landlord she had not been contacted to arrange a meeting. The resident said she had been unwell and was recently hospitalised. The resident said she had removed combustible materials and purchased a metal shed to be compliant with the FRA but still needed to resolve the issue with the fence and that this was urgent. On 23 February 2024 the landlord told the resident it would be in touch shortly to discuss the issues.
  2. The landlord sent an internal email on 14 March 2024, following an inspection at the property. The email noted the resident had carried out extensive work to reduce the combustible items adjacent to the building. The email said that if the resident removed the fencing immediately adjacent to a neighbour’s property, then the wooden panels attached to the railings could remain without the need for fire retardant paint.
  3. On 15 April 2024 the resident told the landlord it had not provided an updated following the visit on 14 March 2024.
  4. The landlord has told this Service that it recognised that the resident’s daughter was autistic and struggled with social anxiety. It had therefore agreed the resident could keep part of the fence at the rear of the property if it was painted with an anti-flammable coating.
  5. The landlord has said that it does not have a vulnerability strategy but aimed to publish a policy in respect of this in February 2025.

Assessment and findings

Handling of a notice to remove fencing from outside the resident’s property

  1. The landlord conducted an FRA at the resident’s building on 22 November 2022. The Regulatory Reform (Fire Safety) Order 2005 requires the landlord to assess the fire risks in respect to premises within their control.
  2. The FRA report found there to be various items of combustible storage throughout the building. The report recommended that all combustible materials be removed from communal areas, and the storage of combustible materials directly adjacent to the block be discouraged. The landlord has not provided a copy of the letter sent to the resident following the report, however, the resident has confirmed that she received notification to remove combustible materials, including fencing, from outside her property.
  3. On 29 September 2023 the resident asked the landlord why her patio was categorised as a communal area as it was solely for her family’s use. There is no evidence the landlord answered the resident’s query. It was reasonable to expect the landlord to have responded to the resident’s question and the landlord acted unreasonably in not providing a response.
  4. The resident’s social worker contacted the landlord on 12, 13, 23 and 27 October 2023 about the requirement to remove the fencing. The social worker said the fencing enabled the resident’s daughter to go outdoors and stopped her care dogs escaping. The social worker said she was aware the fencing had been identified as a fire hazard and asked if an alternative could be found to preserve the family’s privacy. The landlord has said it responded to the social worker via ‘Microsoft Teams’. The landlord has not provided a record of this exchange or any case notes detailing the conversation. Accurate and effective recordkeeping is essential to enable the landlord to fulfil its statutory responsibilities and demonstrate it has done so. It is reasonable to expect the landlord to have documented the exchange with the social worker and the landlord acted unreasonably in not doing so.
  5. The social worker’s emails to the landlord said the resident’s daughter had autism and anxiety and the privacy provided by the fencing enabled her to access the outdoor space. 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, this Service 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 information provided by the social worker should have caused the landlord to consider if the resident’s daughter had a disability and therefore a “protected characteristic” under the Act. There is no evidence to demonstrate that the landlord considered whether reasonable adjustments were required in this case and therefore the landlord has not demonstrated it acted with ‘due regard’ to its responsibilities under the Equality Act 2010. The failure to do so was unreasonable in the circumstances.
  6. In its stage 2 complaint response provided on 3 December 2023, the landlord said it would contact the resident to arrange to meet to discuss options for the fencing. The resident contacted the landlord on 3 January and 20 February 2024 as the landlord had not been in touch to arrange a meeting. On 23 February 2024 the landlord responded and said it would be in touch shortly to discuss the issues. The landlord has not provided evidence of any substantive response to the resident. Having said in its stage 2 response that it would contact the resident and given that the landlord’s intervention with the resident concerned fire safety, it is reasonable to expect the landlord to have adhered to its commitment to contact the resident and to have done so in a timely manner.
  7. The evidence shows the landlord attended the resident’s property on 14 March 2024. An internal landlord email following the inspection said that if the resident removed the fencing immediately adjacent to her neighbour’s property, then the remaining fencing would be retained and would not require fire retardant paint. The resident told the landlord on 15 April 2024 that she had not been provided with the inspection report. The landlord has provided no evidence that it responded to the resident, nor has it provided the report from the visit.
  8. The resident told this Service on 19 August 2024 that the fencing remained in place. The resident said the landlord had told her she could paint the fencing with flame retardant paint, however, this was prohibitively expensive. The resident said she was concerned for her daughter’s welfare if the fencing was removed without an alternative being installed to retain the privacy of the outdoor space. The resident said she had not been offered assistance by the landlord, nor signposted to any agencies that could assist with accessing funds for aids and adaptions.
  9. In summary, the landlord did not demonstrate that it had due regard to its obligations under the Equality Act 2010. The landlord’s record keeping and communication with the resident were inadequate. The landlord failed to demonstrate empathy with the resident and her daughter. As a result of the failings, there was maladministration in this case. Orders are therefore made for the landlord to apologise to the resident for the failings identified in this report and to pay the resident £450 for the time, trouble, distress and inconvenience caused to the resident. This is in line with the Ombudsman’s remedies guidance.

Conduct of a visit

  1. The landlord attended the resident’s property on 31 October 2023. The landlord has said this was in response to the social worker’s concerns about the requirement to remove the fencing, however, as set out previously the landlord has not provided any contemporary records of this discussion. Following the visit, the social worker expressed concern to the landlord that it had attended when the resident was at work, which she said had caused the daughter to become distressed. On 3 November 2023 the resident raised a complaint about the conduct of the visit. The resident said she was advised the landlord would contact her in advance, however, it had arrived without warning and had spoken with her daughter, who had experienced a panic attack.
  2. In its stage 1 complaint response the landlord said it did not normally make appointments to conduct FRA assessments as they concerned communal areas. The landlord said it had knocked on the resident’s door as “a courtesy”, that the daughter was not distressed, but it apologised if the interaction had later caused anxiety or panic. The landlord said it had since met with the social work team and would not attend any future cases without a social worker. It is appropriate that following such an incident the landlord conduct a ‘lessons learned’ exercise. However, the landlord has not provided minutes from a case review meeting, nor has it provided evidence as to how procedures were changed as a result. The landlord has told this Service that it does not have a vulnerability policy at present but that it aims to have the relevant policy in place by February 2025.
  3. The resident escalated her complaint tostage 2 and disputed the landlord’s account of the visit. In its stage 2 response, the landlord said it had received no instructions to attend with a social worker or to only attend when an adultwas present. As set out previously, the content of the landlord’s discussion with the social worker is unclear as the landlord has not provided records setting out the issues raised, or the actions agreed. The evidence does show, however, that it was aware the resident’s daughter had autism and anxiety, and that concern for preserving the family’s privacy and the daughter’s outside access, had triggered the landlord’s visit in the first instance. It is therefore reasonable to have expected the landlord to have considered if it should adjust its normal practice of not making a prior appointment in view of the daughter’s needs. The failure to do so is indicative of the landlord not demonstrating adequate awareness of its responsibility to make reasonable adjustments in accordance with its responsibilities under the Equality Act 2010.
  4. The landlord went on to say that when it attended the resident’s daughter came out of the property to ask what it was doing. The landlord said it explained it was assessing the fence panels and asked the daughter to tell the resident it had attended. In its stage 2 response the landlord apologised for the “miscommunication” in its previous response and partially upheld the resident’s complaint. The landlord, however, acted unreasonably in not explaining why it had provided different accounts of the visit in the 2 complaint responses.
  5. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In doing so the Ombudsman considers whether the redress was in accordance with the Dispute Resolution Principles; be fair, put things right and learn from outcomes.
  6. The landlord apologised for the inaccuracies in its initial account of the visit and apologised if its attendance had caused the resident’s daughter distress. It is not however clear that the learning from case has resulted in embedded procedural change. The landlord did not compensate the resident for the handling of the visit and the landlord has not provided sufficient redress for the time and trouble, distress and inconvenience which was caused to the resident and her daughter.
  7. In summary, the landlord did not consider the daughter’s needs in arranging the visit. The ‘lessons learned’ process and outcomes were inadequate, and the landlord failed to explain why it provided differing accounts of the visit in the 2 complaint responses. The landlord failed to demonstrate due regard to its responsibilities under the Equality Act 2010. As a result of the failings identified there was maladministration in this case. Orders are therefore made for the landlord to pay £300 compensation for the time, trouble, distress and inconvenience caused to the resident.

Complaint handling

  1. The resident raised a complaint to the landlord on 3 November 2023. It is unclear when the landlord acknowledged receipt of the complaint, however, it provided a stage 1 response on 27 November 2023. The landlord has a 2-stage complaints process. It will acknowledge receipt of a complaint within 5 working days and provide a stage 1 response within 10 working days and a stage 2 response within 20 working days. The landlord provided a stage 1 response in 17 working days, which was 7 working days outside its target response time. The landlord acted inappropriately in not adhering to the timeline set out in its complaints policy.
  2. The resident’s stage 2 complaint included a request that the landlord provide a copy of the FRA and the inspection report from its visit on 31 October 2023. In its stage 2 response the landlord said it had already provided the FRA but did not address the issue of the inspection report. The landlord acted unreasonably in not providing the resident with the inspection report, or, if it was unable to do so, setting out why.
  3. In its stage 2 response the landlord said the fence could be painted with fire retardant paint and that it would be in contact with the resident to arrange a meeting to discuss options for the fencing. The landlord did not contact the resident and she therefore had to chase the landlord. The landlord attended the property on 14 March 2024, 58 working days after the landlord provided a stage 2 response. The landlord acted inappropriately in not adhering to the undertakings given in its stage 2 complaint response and in failing to use the complaints process to affect a lasting resolution in a timely manner.
  4. In summary, there was service failure in the landlord’s complaint handling. The landlord took too long to provide a stage 1 complaint response, did not address the resident’s request for the inspection report, and did not adhere to the undertakings set out in its stage 2 response. Orders are therefore made for the landlord to apologise for the failings identified in this report and to pay £100 compensation for the time and trouble, distress and inconvenience caused to the resident.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of a notice to remove fencing from outside the resident’s property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its conduct of a visit to the resident’s property.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its complaint handling.

Orders and recommendations

  1. Within 4 weeks of the date of this report, the landlord must:
    1. Apologise to the resident, in writing, for the failings identified in this report.
    2. Pay the resident compensation of £850, comprising:
      1. £450 for the time, trouble, distress and inconvenience caused to the resident as a result of the landlord’s handling of a notice to remove fencing from outside the resident’s property.
      2. £300 for the time, trouble, distress and inconvenience caused to the resident as a result of the landlord’s handling of a visit to her property.
      3. £100 for the time, trouble, distress and inconvenience caused to the resident as a result of the landlord’s complaint handling.

The compensation should be paid direct to the resident and must not be paid to a rent or service charge account.

  1. Set out a solution to the FRA recommendations applicable to the resident’s property that demonstrates due regard to the landlord’s obligations under the Equality Act 2010 and demonstrates that it has considered any reasonable adjustments to accommodate the needs of the resident’s daughter. The landlord should provide the information in writing to the resident and to this Service.