Southwark Council (202310781)

REPORT

COMPLAINT 202310781

Southwark Council

6 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

The complaint is about the landlord’s handling of:
1. Delays with occupational therapy assessments and adult social care.
2. The adaptation to the kitchen doorway.
3. The resident’s reports of a pest infestation.
4. The resident’s reports of her property overheating.
5. The associated complaint.

Background

The resident holds a secure tenancy on an adapted one-bedroom ground-floor flat in a residential block owned by the local authority landlord. The tenancy agreement began in September 2021. The resident is disabled and reliant on her wheelchair at all times. The landlord’s records show the resident is also considered vulnerable due to her age.
Shortly after she moved into the property, the resident required a wider wheelchair. The new wheelchair did not fit through the main door or the kitchen. She was not able to enter the bathroom independently as there was no space for turning. Although there was a back exit to the property, the grounds were uneven, and there was a sharp turn to negotiate the back gate, which was reportedly too difficult for her carer to manage. The resident said she used a commode and washed in the bedroom with the help of her carer. In November 2021, she told the landlord that the flat did not meet her needs and asked to move. The landlord said the resident needed an Occupational Therapy (OT) assessment first, and it added her to the waiting list for the OT.
In March 2022, the resident was hospitalised. The discharging hospital made a referral to the landlord regarding “pest control issues and housing repairs”. The landlord later reported that it checked with the resident’s carer, and no pest control issues had been raised. In October 2022, the resident formally complained about a “promise of an adapted property, but no action was taken”. It is unclear whether the landlord responded to the complaint or how it was resolved.
On 12 April 2023, the resident made a formal complaint to the landlord. She said she had experienced a ‘significant decrease’ in her quality of life due to the landlord’s “lack of urgency”. She said the landlord failed in its obligation under the Equality Act and, as a result:
1. She was unable to freely visit friends and family, invite people over, or go outside for fresh air. She had to pay a cook to prepare her food, and she could not get a drink or a snack if her carer had left for the day.
2. Had the landlord widened the kitchen door, she could have access to the kitchen, giving her a “better quality of life”. The landlord could have used the Disabled Facilities Grant (DFG) or assisted by any other means.
3. The flat was overheating, which caused her distress, particularly during summer nights, and exacerbated her illnesses.
4. She had reported being bitten by “little insects”. The infestation appeared to worsen when the property was hot.
The resident contacted this service on 25 June 2023 and said the landlord had failed to respond to her April 2023 complaint despite her follow-up emails.
The OT assessment was carried out on 26 July 2023. Subsequently, on 24 August 2023, a referral was made to the landlord’s Housing Adaptation Team (HAT) to widen the kitchen door to 900 mm to allow the resident access to her kitchen. Once completed, a further OT assessment would determine the feasibility of further adaptations and whether these would satisfy the resident’s needs.
The landlord sent its stage 1 response on 20 September 2023 and said:
1. It was sorry for the delays with the OT, which were outside its control.
2. It had discussed rehousing with the resident, but she said she did not wish to pursue this. It would widen the kitchen doorway and then reassess.
3. An engineer isolated the radiators in July 2022. No further issues have been raised since. It would raise a new job for its heating engineers to investigate this.
4. It had sent pest control operatives each time the issue was reported. There was no evidence of an infestation. The resident should discuss this with her GP to rule out an allergic reaction.
The resident escalated her complaint to stage 2 on 25 September 2023. She denied informing the landlord that she did not want to move, as it was clear to her that the property was ‘unsuitable’ for her needs. However, she said the landlord could have widened the kitchen doorway, alleviating some of the urgent requirements of accessing her kitchen. She said it would also enable the OT to conduct a full assessment to determine the suitability and feasibility of further adaptations. If the OT assessment said further adaptations were not feasible, she said she would then like to be rehoused as a matter of urgency.
The landlord sent its final response letter on 3 October 2023. It reiterated its stage 1 response and added that it would ask the OT to discuss the possibility of rehousing the resident.
In July 2024, the tenant informed this service that she was still waiting for the landlord to widen the kitchen doorway, treat the property for pests and repair the overheating. She would also like to be compensated.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must first consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42 (j) of the Housing Ombudsman Scheme states that the Ombudsman may not investigate complaints that fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.
Complaints about occupational therapy assessments and adult social care are usually investigated by the Local Government and Social Care Ombudsman (LGSCO).
The resident was waiting for an OT assessment from November 2021 until July 2023. For the reason set out above, the complaint about the landlord’s handling of delays in occupational therapist assessment and adult social care is outside the scope of this investigation. This service has referred this part of the complaint to the LGSCO on behalf of the resident.

Assessment and findings

When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles, which include treating people fairly, following fair processes, putting things right, and learning from outcomes. The Ombudsman must first consider whether a failure on the landlord’s part occurred and, if so, whether this adversely affected or caused detriment to the resident. If a failure by the landlord adversely affected the resident, the investigation will then consider whether the landlord took enough action to ‘put things right’ and learn from the outcome.

The landlord’s handling of the adaptation to the kitchen doorway

The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all public authorities and other bodies carrying out public functions to respect and protect individuals’ rights. Article 8 protects an individual’s right to respect for their private and family life, home and correspondence. Private life includes respect for personal dignity and psychological integrity.
The Equality Act 2010 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 resident had an OT assessment in July 2023; however, it was not possible to assess the suitability of her home as the resident could not access the kitchen. The OT recommended that the kitchen doorway be widened to 900mm to allow the resident to enter her kitchen. The OT estimated the cost to be below £1,000 and referred the job to the landlord’s housing adaptation team in August 2023. Once completed, a second OT assessment would determine whether further adaptations were feasible and practical and would meet the resident’s needs.
The landlord informed this service that it did not have a housing adaptation policy. It advised that one of its key performance indicators was to provide an adaptation within 28 days and that it had a 95% customer satisfaction rate. It provided a process diagram showing that an adaptation should be delivered within 40 working days. After the housing adaptation team received a referral from the OT, the landlord would arrange a pre-work inspection with the resident, contractor, and surveyor to assess whether the recommended adaptation was practical and feasible.
The Regulator of Social Housing’s Tenant Involvement and Empowerment Standard 2017 requires landlords to treat residents fairly and respectfully. It says landlords will provide choices, information, and communication appropriate to residents’ diverse needs. The landlord was entitled to assess whether adaptation to its property was practical or feasible. Its decision-making process should be fair, and the outcome should be discussed and explained to the resident.
Government guidance on the delivery of disabled facilities says landlords should deliver adaptations based on the urgency and complexity of the work. According to the landlord’s process, after receiving the referral for the work it would arrange a pre-work assessment meeting in the resident’s home with its contractor, the surveyor, and the resident. There is no evidence that the landlord communicated with the resident about arranging this meeting; therefore, there is no evidence it assessed the complexity of the job.
The urgency of the work was evident. The resident was not able to enter the kitchen. In her April 2023 complaint, she said that having the landlord widen the kitchen doorway would have allowed her to be more self-sufficient and alleviate some of her distress and inconvenience.
In its September 2023 stage 1 response, the landlord confirmed to the resident that it would carry out the work to the kitchen door before any further changes were made. In her September 2023 escalation request, the resident said a month had passed since the OT sent the adaptation referral to the landlord. However, she said she had received no further communication or written timescale to progress the work. On 17 October 2023, the landlord confirmed to the resident that despite her looking to move a property, it would carry out the job to widen the kitchen doorway. It said it may not carry out further adaptations to change the back gate as the resident was looking into rehousing, and it could not justify the costs.
The resident kept chasing the landlord to carry out the adaptation. There is no evidence that the landlord explained the reason for the delay in widening the kitchen door. The landlord’s housing adaptation team contacted the resident on 6 February 2024, which was 115 working days after the referral from the OT. The delay was not in line with the landlord’s process and target of completing the job within 40 working days. It also exceeded the maximum target of 80 working days for delivering the most complex adaptations, as stated in Government guidance on delivering disabled facilities. This was not appropriate.
The adaptation job was then cancelled after it was confirmed that the resident was still pursuing rehousing. The landlord was aware that the resident was vulnerable. In not proceeding with widening the kitchen doorway, it did not demonstrate due regard for the resident’s vulnerabilities, or the duties placed on it as set out in the Equality Act 2010. This was not appropriate.
It should have been clear to the landlord that the resident’s being confined to her bedroom or living room, unable to “freely invite or visit friends and family,” and unable to access her kitchen was unfair and caused her significant detriment. The landlord did not demonstrate it had due regard to its obligations under Article 8 of the Human Rights Act 1998. This was not appropriate.
The detriment for the resident over the delay of 11 months to widen the kitchen door was significant. In her April 2023 complaint, she explained that if the landlord had widened the kitchen doorway, it would have alleviated some of her distress and inconvenience. In her September 2023 escalation request, the resident said she had experienced a “significant decrease in her quality of life”. She reported having to pay a cook to prepare her food despite being on a low income herself. She said she could not get a drink or a snack outside her carer’s hourly visit. She reported that she had been “prevented from living an independent and fulfilled life”. The OT also noted in the July 2023 assessment that the resident enjoyed cooking and that being able to cook would promote her well-being.
The landlord’s failure to progress and carry out the widening of the kitchen door as per the July 2023 OT assessment was inappropriate, in particular, given the significant impact not doing so had on the resident due to her disability. This amounted to severe maladministration. In line with the Ombudsman’s dispute resolution principles, orders have been made below for the landlord to put it right to the resident and to learn from the outcome.

The resident’s reports of her property overheating

Excess heat is one of the hazards identified by the Housing Health and Safety Rating System (HHSRS). HHSRS guidance for landlords says, particularly in [properties with] district heating systems, it is important to have means of controlling temperature within the dwelling. Excess heat is hazardous for the elderly, as it is a main cause of dehydration and breathing difficulties and can lead to strokes and heart attacks. According to the HHSRS guidance, landlords are expected to inspect the hazard at the property, consider whether it could be mitigated, and take action accordingly.
The resident raised her concerns in July 2022. When operatives attended in July 2022, they found the property’s main heating valve was closed. Operatives opened the valve and isolated each radiator individually. There is no evidence that operatives investigated whether the property was overheating.
The resident raised this issue again in March 2023 and then as a formal complaint in April 2023. She chased the landlord to respond on 24 May 2023, 2 June 2023, 12 July 2023, and 2 August 2023.
On 10 August 2023, the housing officer emailed the landlord and said he had visited the resident and was concerned that the extractor fans were not working in the bathroom and kitchen. He said there was damp, mould and signs of a leak in the wall by the radiator outside the bathroom, and he sent the landlord pictures of the resident’s home. The HHSRS guidance for landlords says excess heat could be caused not only by the district heating system but also by poor ventilation, the fabric of the building, and service pipes running through the property, as well as other reasons. There is no evidence that the landlord acted on the housing officer’s concerns.
The resident raised the overheating issue again in September 2023. The landlord’s records show operatives attended and said the district heating system was ‘compensated’ and would only come on when it was cold outside. It was off at the time of the visit. In April 2023, the resident said the overheating issue was particularly bad during summer nights. The heating system would not be expected to supply space heating during the summer, and either way, the radiators had been isolated in the resident’s home. Operatives again failed to investigate whether the property got excessively hot, what was causing it, and how it could be mitigated.
The resident insisted that the property was overheating, and she reported this again in October 2023. The landlord attended on 30 October 2023 and said the bedroom radiator was hot and that it had now isolated the radiator. The resident reported to the landlord again on 9 November 2023 that the property was still hot. There is no evidence that the landlord investigated further.
In summary, there is no evidence that the landlord fully investigated the resident’s concerns. Therefore, there is no evidence that it assessed whether there was a risk of excess heat and, if so, how to mitigate it. This amounted to maladministration.
The resident reported to the landlord that the excess heat exacerbated her illnesses and worsened her symptoms associated with bite marks on her skin. In her April 2023 complaint, she reported that the overheating issues were a “major cause of her distress”. Orders have been made below for the landlord to investigate whether the property was overheating, take reasonable mitigating action, and learn from the outcome.

The resident’s reports of pest infestation+

The resident complained about being bitten by a “little insect” in her property. Her doctor referred her to the landlord in March 2022. She said she did not think it was bed bugs. The landlord checked with her carer, who reportedly said they were unaware of this issue. There is evidence that the landlord made a booking for pest control to attend the resident’s home in March and June 2022. However, there was no evidence that operatives attended the resident’s property at that time.
The next evidence on record is from April 2023, when the resident made her formal complaint. She chased the landlord to respond on 24 May 2023, 2 June 2023, 12 July 2023, and 2 August 2023. The landlord’s records show a booking for pest control was made in October 2023, but operatives attended in November 2023. The landlord has not provided this service with its pest control policy. However, in all the circumstances of the case, the 7-month delay from April to November 2023 was not reasonable and amounted to maladministration.
The landlord said in its complaint response that operatives attended each time the resident reported the pest issue; however, it has provided no evidence to support this. However, it is noted that once the job was raised in October 2023, the landlord attended at regular intervals after that. The landlord also recently identified a need to spray the property, but the resident could not be present for the work.
Orders have been made below for the landlord to work with the resident and find a solution that would enable pest control operatives to treat the resident’s home.

The landlord’s handling of the associated complaint

The Housing Ombudsman Service’s Complaint Handling Code (the Code) requires landlords to acknowledge their failures and describe the actions they have taken or intend to take to put things right. Complaints can provide independent, practical, and unique insights, give an early warning system for significant problems, and act as a catalyst for organisational learning.
The landlord’s complaints policy provides for a 2 stage complaints procedure. It is to respond to a complainant at stage 1 within 15 working days and within 25 working days at stage 2. The resident submitted her formal complaint on 12 April 2023, and she received an acknowledgement in April 2023. However, the landlord’s stage 1 response was 111 working days later, on 20 September 2023. This was not appropriate.
The records show the landlord wrote internally on 2 August 2023 that it was ‘regrettable’ that the resident had received an acknowledgement of her complaint in April 2023 and that corresponding with her now would be “unsympathetic and likely unhelpful.” Another internal email on 3 August 2023 said it felt that “going a formal complaint route would not be beneficial to the resident at this point.”
The Ombudsman’s Complaint Handling Code says a positive complaint handling culture is integral to the effectiveness with which landlords resolve disputes. Landlords must use complaints as a source of intelligence to identify issues and introduce positive changes in service delivery. The approach taken by the landlord here did not align with the values that underpinned the Ombudsman’s Complaint Handling Code and amounted to maladministration.

Determination

In accordance with paragraph 42 (j) of the Housing Ombudsman Scheme, the complaint about the landlord’s handling of delays with occupational therapy assessment and adult social care is outside the jurisdiction of this service.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in respect of its handling of the adaptation to the kitchen doorway.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s reports of her property overheating.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s reports of pest infestation.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the associated complaint.

Orders and recommendations

Orders

Within 4 weeks from the date of this report, the landlord must widen the resident’s kitchen doorway. If it was not structurally possible to carry out the work, it must produce a report by a RICS-registered surveyor explaining the reasons for this in detail. Evidence must be shared with this service.
The landlord must take the following actions:
1. Inspect the resident’s property and produce a report by a suitably qualified engineer within 4 weeks from the date for this report. The report must set out the method used to ascertain whether there was a secondary heat source.
2. Within a further 2 weeks, it must carry out the engineer’s recommendations to mitigate the situation in accordance with the report’s findings.
3. The report and supporting documents must be sent to the resident and this service within 6 weeks from the date of this report.
The landlord must liaise with the resident and her carer/relatives and find a solution that would enable its operative to treat the resident’s home for pests and keep the resident out of the property for 4 hours after, in accordance with the evidence supplied by the landlord from 4 January 2024. It must complete the treatment within 4 weeks from the date of this report.
Within 4 weeks from the date of this report, the landlord must write the resident an apology letter for the failure identified. It must also pay the resident directly a total of £3,356 in compensation, comprised of:
1. £1,500 for the distress and inconvenience caused by its handling of the resident’s adaptation to the kitchen doorway.
2. For the 52 weeks starting on 24 August 2023 and ending 4 weeks from this report, the landlord must pay the resident compensation for the distress and inconvenience caused by the loss of room and enjoyment of her home. This service calculated compensation based on 25% of the weekly rent of £112, a total of £1,456.
3. £100 for the distress and inconvenience caused by its handling of the resident’s reports of pest infestation.
4. £100 for the distress and inconvenience caused by its handling of the resident’s reports that the property was overheating.
5. £200 for the distress caused by its handling of the associated complaint.
In accordance with paragraph 54 (g) of the Housing Ombudsman Scheme, the landlord must carry out a case review by its head of service. A summary of its findings, learnings and actions it would take must be sent to this service within 6 weeks from the date of this report, and it must include (at minimum):
1. The reasons why it did not widen the kitchen doorway in 11 months, and the measures it would need to take to ensure situations like this do not reoccur.
2. Identify the measures it would need to take to ensure complaints involving cross-departmental issues are being coordinated and responded to by the appropriate department, in accordance with its complaint procedure.
3. It must consider whether staff training is required with regards to The Human Rights Act 1998 and the Equality Act 2010. If it does not think that staff training is required, the rationale for this must be explained in its review.

Recommendations

If not already done, the landlord should repair the extractor fans and light strip in the kitchen and take prompt action to eradicate any damp, mould, or leaks in the resident’s home, in accordance with the evidence it had received from its housing officer.