London Borough of Newham (202210318)

REPORT

COMPLAINT 202210318

Newham Council

27 March 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s:
1. Handling of adaptation works carried out to the resident’s bathroom.
2. Response to the resident’s concerns about the toilet flush and size of the wash basin.
3. Response to the resident’s reports of poor staff conduct.
4. Complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
Within her complaint to the landlord, the resident advised that she was unhappy with a handle flush, and that she required a push button flush instead. The resident was also unhappy with the size of the wash basin, and advised that it was smaller than the wash basin that had been in situ prior to the works being carried out. When the landlord responded to the resident’s complaint, it advised that when it receives a request for a wet room, the Occupational Therapy department (OT) provides a design to suit the resident’s needs. It added that all of its fittings were of a standard size, unless advised differently by OT.
After carefully considering all the evidence, in accordance with paragraph 42(p) of the Scheme, complaint 1b is outside of the Ombudsman’s jurisdiction. While the resident’s concerns are acknowledged, the Ombudsman cannot order a landlord to install fittings or modify installations within a property in line with a resident’s request. Paragraph 42(p) of the Scheme states that “the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide”.
If the resident wishes to pursue this further, she should contact the OT and ask for a further assessment, or for consideration to be given to changing the flush and the wash basin. If the resident is unhappy with the response she receives from the OT, she may raise a formal complaint with the Council. If necessary, the resident may escalate the matter to the Local Government and Social Care Ombudsman (LGSCO) once the Council’s complaints procedure has been exhausted.

Background

The resident is a secure tenant of the landlord’s property. The property is a three-bedroom, ground floor maisonette. The resident suffers with mobility issues.
In April 2022, the landlord received an alteration request from the local authority’s Occupational Therapy department (OT). It requested that the resident’s bathroom be adapted into a wet room due to her mobility issues. The landlord’s surveyor attended the property on 25 April 2022 to complete an inspection. The condition of the bathroom was inspected, and it was confirmed that the bathroom would be converted into a wet room. The job was assigned to the landlord’s contractor on 10 May 2022 so that works could commence.
The contractor contacted the resident on two occasions in May 2022, asking if works could commence the next day. However, the resident declined owing to work commitments and healthcare appointments. The works were initially agreed to start on 6 June; however, they were postponed until 8 June. They were subsequently completed on 15 June 2022.
The resident complained to the landlord on 16 June. She said that she had been struggling getting in and out of her bathtub, and had therefore been assessed by OT. Following the assessment, she was told someone would be in touch. While the landlord and its contractor did contact her, there was confusion around the start date, and staff who she spoke to did not seem to know what was happening. While the works had been completed, she was not happy with the toilet flush system, as this was not appropriate for her needs. She also found that the basin which had been installed was too small.

The resident was also happy with comments made by the operative who completed the work. She felt that he had been discriminatory; and she raised concerns about his conduct and professionalism whilst in the property.
The landlord partially upheld the complaint on the basis that communication surrounding the start date of the works was unclear. It also identified a delay in providing its stage two complaint response. However, regarding the basin and the toilet flush, it explained that all fittings were a standard size unless advised differently by OT.
Regarding the staff conduct, the landlord explained that it had a zero-tolerance policy towards any form of discrimination and unacceptable staff behaviour. It apologised if the resident felt she was mistreated in any way, and confirmed that this would be addressed internally.

In light of its failings, the landlord apologised and provided £100 compensation. This was broken down as: £50 for not providing the resident with an accurate start date, and £50 for the delayed complaint response.
The resident referred her complaint to this Service on 14 October 2022. She said that she remained dissatisfied with the landlord’s response to her reports of poor staff conduct and work completed in her bathroom. As resolution to the complaint, the resident said that she wished for the landlord to:
1. Improve its communication with her by ensuring all information provided is accurate.
2. Fit a button flush on the toilet and address the size of the basin in the bathroom.
3. Address the conduct of its contractors.

Assessment and findings

Scope of investigation

Within her complaint to the landlord, the resident expressed concern that the operative who visited her property had made discriminatory comments. It is not within the Ombudsman’s remit to make a finding of discrimination. However, when investigating this complaint, we have considered the landlord’s response to the resident’s concerns and whether it appropriately investigated her allegations. We have also assessed whether the landlord gave due regard to the resident’s disability and demonstrated this in its dealings with her.

Bathroom adaptations

Under the tenancy agreement, the landlord is responsible for carrying out certain repairs inside and outside of the property. The landlord will also carry out works or adaptations recommended by OT. Neither the landlord’s repair policy nor guidance on aids and adaptations provides a procedure or timescale that should be adhered to once works have been approved. The Ombudsman has therefore assessed the reasonableness of the landlord’s handling of the works, and response to the resident’s complaint.
The evidence which has been provided to this Service shows that on receipt of the OT recommendation, the landlord promptly arranged for the property to be inspected. The works were subsequently approved. However, following this, the landlord failed to provide the resident with an appointment date for the works to commence. Instead, the landlord’s contractor contacted the resident twice in May 2022 requesting next day appointments, which she could not accommodate. The landlord’s decision not to provide a fixed start date for the works was the cause of inconvenience for the resident. The evidence shows that as no start had been confirmed, the resident was left to chase the landlord.
It was not unreasonable for the landlord to check if the resident could accommodate short-notice appointments due to cancellations. However, once it became aware that the resident required further notice, it would have been reasonable for the landlord, or its contractor, to contact her to agree a mutually convenient start date.
As detailed above, the landlord acknowledged that there had been “miscommunication” regarding the start date, and offered the resident £50 compensation. It was appropriate to try to put things right. However, the evidence provided to this Service does not demonstrate that the landlord fully understood the inconvenience that had been caused to the resident. Furthermore, the landlord’s explanation about the matter within its complaint responses were vague, and do not demonstrate that it had thoroughly investigated the matter. We have therefore made a series of orders which aim to put things right, and improve the landlord’s service in this area.

Staff conduct

The resident’s concerns about the incident are acknowledged. Her comments are also not disputed by this Service. As our approach to investigations is inquisitorial, and not adversarial, we cannot assess the strength of each party’s testimony and decide in favour of one over the other. Our role as an impartial organisation is to review the contemporaneous evidence that is available to determine whether a landlord has complied with its duties and obligations, and acted in a manner that is fair and reasonable.
It is unclear whether the landlord has any policies or procedures in relation to staff conduct. We have therefore assessed whether the landlord’s response to the resident’s concerns was fair and reasonable in all of the circumstances.
The evidence provided to this Service shows that in response to the resident’s complaint, the landlord’s surveyor made enquiries with the contractor about the incident. He also asked the resident for her account, to establish the events that had occurred. This was a reasonable and proportionate steps in the circumstances. The landlord also noted that the contractor had attended the property to apologise in person, and that it had raised the issue during in-house training. However, it denied the allegations that had been made.
The landlord acknowledged that the resident remained unhappy. However, it said that as the works had been completed satisfactorily, there was “no further action they could take going forward”. The landlord’s response was not entirely appropriate. While it is acknowledged that there was an absence of evidence relating to the incident, the landlord failed to consider how the resident had been affected as a result of the interaction with the operative.
Although the allegations had been denied by the contractor, the resident was clear in explaining how the incident had affected her, and that it had been the cause of upset. While it is noted that the landlord could not reach a clear conclusion about what had happened, the evidence does not show that it considered the impact on the resident, and demonstrated a proportionate level of empathy. The landlord should now contact the resident to acknowledge how the incident made her feel, and to further explain the in-house training that was undertaken by the contractor.

Complaint handling

The landlord’s complaints policy states that a stage two response should be provided to the resident within 20 working days. However, in this case, the landlord did not provide a stage two response until 27 working days later. This was a departure from its complaints policy.
The landlord appropriately acknowledged the delay within its stage two response. It also apologised for the inconvenience that the resident had been caused, and offered £50 compensation. The landlord had not departed from its service standards significantly, and that there is no evidence suggesting that the resident was further inconvenienced as a result of the delay. As such, the amount of compensation that was offered was proportionate in the circumstances.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way it handled the resident’s concerns about the adaptation works carried out in her bathroom.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s reports of poor staff conduct.
In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint regarding the its handling of the associated complaint satisfactorily.

Under paragraph 49(p), the resident’s complaint about the toilet flush and size of the wash basin fall outside of the Ombudsman’s jurisdiction.

Orders

Within four weeks of the date of this decision, the landlord should:
1. Pay the resident £200 compensation for the confusion, distress and inconvenience caused by its poor communication.
2. Reoffer the £50 compensation which was offered during the complaints procedure, if not previously accepted.
3. Review its repairs policy and aids and adaptations policy. In doing so, the landlord should consider whether it is necessary to implement a procedure setting out what actions should be taken, and when, on receipt of an OT recommendation. The outcome of the review should be shared with the Ombudsman and the resident.
4. Contact the resident to discuss the incident. In doing so, the landlord should give consideration to how the incident made the resident feel. The landlord should also provide the resident with further information about the in-house training that was undertaken by its contractor.

Recommendations

Within four weeks of the date of this determination, the landlord should:
1. Review how it communicates with residents during the adaptations process. Namely, the landlord should provide residents with timescales for the adaptations process and appointment dates in advance.
2. Pay the resident the £50 offered for its poor complaint handling, if it has not done so already.