Bournville Village Trust (202100005)

REPORT

COMPLAINT 202100005

Bournville Village Trust

3 December 2021

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. response to the resident’s reports of a leak in her bathroom;
2. response to the resident’s request that it refund the cost of her emergency builder;
3. communication following the resident’s request for the release of its call recordings;
4. decision to only allow its staff to visit the resident’s property in pairs;
5. complaints handling.

Background and summary of events

Background

The resident has been an assured tenant at the property of the landlord since 11 October 2008. The landlord is a registered provider of social housing.
The landlord operates a two stage complaints policy. A stage one response should be given within 10 working days of a complaint, and a stage two response within 15 working days of an escalation.
The landlord operates a repairs policy. The repairs policy notes that blocked toilets and uncontrollable leaks are considered ‘emergency repairs’. In such instances, the landlord will attend to make safe the same day and will arrange a follow on ‘routine repair’ as required in instances where it is reasonable for the resident to live with the defect. Routine repairs involving a toilet are to be completed within seven calendar days.
The landlord operates an ‘at risk’ register policy. The policy relates to its register of residents who could possibly pose a risk of violence to its members of staff. When a concern is raised, a flag should be placed on the resident’s file which should contain the reasons for identifying the individuals as being potentially violent or a risk to staff. This should be a specific incident, rather than a general opinion. When placing residents on the register, they should receive a written notification as to why their behaviour was unacceptable. The policy notes, however, that there may be “extreme cases” where informing the resident would create a risk of further violence, in which case it is acceptable not to inform the resident. At risk flags should be reviewed every six months and removed when there is no longer a threat. As a result of the flag, the landlord may take steps such as arranging to visit a resident in pairs.

Summary of events

The resident has advised that her downstairs toilet ceased working during 2020. She had verbally discussed this with her housing officer during a period of COVID-19 restrictions, and her housing officer advised that as she had a functioning upstairs toilet at this time, the downstairs toilet would be considered a routine repair. The housing officer further advised that due to COVID-19 restrictions, routine repairs were on hold. This service has not been provided with evidence of this discussion and the resident subsequently decided not to raise the issue as a repair at that time.
On 24 December 2020, the resident experienced a leak coming from her upstairs toilet. Several call recordings from the landlord’s out of hours service relating to this incident have been provided to this service. The resident reported that the toilet was leaking, following which, the landlord advised it would liaise with its plumber. During this call, the resident clearly advised she considered herself to have disabilities and that her downstairs toilet was not functioning. It is not disputed that the landlord’s plumber subsequently called the resident and gave advice to turn off the water supply to the toilet. This service has not been provided with a copy of the recording of this call. The resident’s father, who at this time was at the property, shut off the water supply, which solved the leak. The toilet, however, would no longer flush. Given that her downstairs toilet was not functional, the resident was concerned this had left her with no functioning toilet. The resident’s father reactivated the water supply before then leaving the property.
Shortly after, the leak returned, and the resident again called the landlord for assistance. She advised she was unable to turn off the water supply again as she was disabled, and her father was no longer at the property. The call handler noted her disability and, on this basis, arranged for the landlord’s plumber to attend. It is not disputed that the plumber, along with another operative of the landlord, attended the property and carried out an investigation into the leak. In the course of doing so, some damage was caused to the resident’s bathroom. The landlord has advised it was unable to return the toilet to working condition at this time due to a new valve being required. It turned off the water supply again and advised the resident to manually add water to the cistern in order to activate the flush.
Following the plumber leaving the property, the resident again called the landlord and expressed concern that she was unable to manually add the water due to her disability. This service has not been provided with a copy of the recording of this call, however, the landlord has provided this service with its call notes. The landlord subsequently liaised with its plumber, who advised they would not return to the property as the resident’s “disability would not stop her doing that, she is able-bodied and she can definitely manual flush.” This advice was given to the resident who expressed her dissatisfaction and commented that the plumber had no right to judge her disability.
The resident subsequently called back and advised she had spoken to a private emergency builder who had advised her the cause of the leak was likely not the toilet. The resident advised she did not want the landlord’s plumber to return due to his comments, and that she would arrange for her builder to attend. She also advised that she would be forwarding the bill to the landlord. Based on the call recording, the landlord’s call handler advised that she should send the bill to the landlord’s main office, and they would “take this further with you.” The call handler did not make any comments on whether or not this would be paid.
On 4 January 2021, the resident advised the landlord that her builder considered the cause of the leak not to have been the toilet, but to have been from the roof of the bathroom. She requested that the landlord investigate the roof, and also reported that the plumber had caused damage to her bathroom while carrying out the emergency repairs. She reiterated her disability had meant she was unable to manually fill the cistern with water and that she would be forwarding the invoice for her builder to the landlord.
The landlord has provided this service with its internal communications. On the same date, the landlord raised repair orders for the bathroom, an investigation into the leak, and to repair the downstairs toilet. It subsequently advised the resident it had raised these repairs.
On 12 January 2021, two of the landlord’s operatives attended the resident’s property to carry out the repairs. The resident advised she had not been informed of their attendance and that it was not convenient and so refused them entry. This service has not been provided with evidence to suggest prior notice had been given to the resident. A new date was arranged for 21 January 2021, however, due to a rise in COVID-19 cases at this time, the landlord advised on 15 January 2021 that this repair appointment would need to be postponed. Around this time, the resident also reported she was self-isolating and so the repairs were delayed further on this basis.
At this time, the resident advised she was not happy for the landlord’s plumber, Mr A, or the landlord’s other operative, Mr B, to attend her home. She also disputed the need for two operatives to have to attend her home. On 18 January 2021, the landlord advised it saw no reason why it was inappropriate for Mr B to attend the property. It also advised that on the basis of “threats that you have previously made towards the welfare of staff,” it required its operatives to attend in pairs. The resident subsequently disputed any such threats had been made and requested evidence. She reiterated she would not allow Mr B into her home and requested that the “false allegations” be raised as a formal complaint.
On 23 January 2021, the resident forwarded to the landlord the invoice in the amount of £265 from her builder for their attendance on 24 December 2020.
On 1 February 2021, the landlord provided its stage one response in relation to the resident’s complaints regarding its decision to only attend the resident’s property in pairs. This formal response also relates to a complaint regarding arrears of court costs which has been investigated separately by the Ombudsman (case reference 202014113). The landlord advised it had put a flag on the resident’s record in 2015 “following an incident when you verbally threatened staff.” As a result of this flag, the landlord required that its operatives attend in pairs “for safety of staff.” It further advised that it had since reviewed this flag, but that “further incidents towards staff” led to the decision for the flag to remain. It noted that the resident had raised concerns that she felt unsafe with two male operatives coming into her property as she was a single mother. The landlord advised it had taken legal advice on this issue and that, as it only had a small team, it was unable to arrange for female staff to attend and that it was reasonable for its available male staff to attend.
On 2 February 2021, the landlord provided a further stage one response (dated 19 January 2021) in relation to the toilet leak. It noted the sequence of events from that evening and advised that when at the property, the resident had not expressed any concerns to the plumber about their instruction to manually fill the cistern. It advised it did not have any record that the downstairs toilet was not working, nor that the resident was disabled. Given that the toilet was not actively leaking when the resident arranged for her builder to attend, it concluded that it had not failed to carry out an emergency repair that would justify the builder attending. It therefore advised it would not be paying her builder’s invoice.
On 3 February 2021, the resident advised that she considered the landlord to have approved the builder’s attendance during her telephone call on 24 December 2020. She subsequently requested copies of the landlord’s telephone recordings. The landlord provided the resident with some of its recordings, but the resident noted that the calls she had with the landlord’s plumber were not included. On 8 March 2021, the landlord advised that following discussions with the Information Commissioner’s Office (ICO), it had decided not to release these recordings “to ensure the safety of our staff” following the resident making a “threat regarding the operative involved in this complaint.” It noted that the contents of these calls had previously been discussed with the resident.
The resident subsequently requested the landlord provide details of the threats it referred to. The landlord advised that it was unable to do so as “as this would identify the individual involved.” The resident subsequently advised she wanted the landlord’s accusations to be raised as a formal complaint.
On 11 March 2021, the landlord sought to arrange for the postponed repairs and investigation into the leak. The resident requested to know the names of the landlord’s operatives, following which the landlord advised it was unable to provide at this time. The resident replied that she was unwilling to agree to the repairs unless she was informed of the names of the operatives and reiterated that she did not want Mr A or Mr B to attend.
On 15 March 2021, the resident provided a detailed reply to the landlord’s stage one response. She disputed that the landlord was unaware of her disability and noted she had previously had an occupational therapy assessment in relation to her disability which had been provided to the landlord, and also that while Mr A had said she could fill the cistern, he was not qualified to make such an assessment. She also reiterated she considered the landlord’s call operator to have approved her arranging for her builder to attend and that the bill could be forwarded to the landlord.
On 22 March 2021, the landlord advised it would shortly be providing its stage two response, which would include the resident’s complaint about the landlord’s position that she had made threats against its staff. On the same date, the resident requested that the two complaints be treated separately, to which the landlord agreed it would offer separate responses.
The landlord provided its stage two response on 23 March 2021. It advised its procedure for emergency repairs was to initially make the property safe and then arrange for further works at the next available opportunity, which in this instance, it advised would have been on 4 January 2021. It advised it had done this and left the resident with instructions about how to continue to manually operate the toilet until that date. It reiterated it had not been informed of the resident’s disability, and that, had it been informed, this would not have altered how it approached the repair as a part needed to be ordered to carry out the repair. It reiterated it would not be paying the invoice for the builder arranged for by the resident as it had not been given the opportunity to carry out the repair in line with its service standards (i.e. the next available repair opportunity on 4 January 2021), nor had it been “given notice of your intention to engage a third party before doing so.”
The response also addressed the resident’s concerns that the landlord had accused her of making threats against its staff, and its subsequent decision to withhold its call recordings. It reiterated it had taken advice from the ICO when deciding to withhold the recordings and that it had done so in order to “ensure the safety of our staff” as the resident had “made a threat regarding the operative involved in this complaint.” It also noted that the resident had been made aware of the contents of the call, which it believed to be sufficient for her to escalate her complaint. Regarding the specifics of the alleged threat, the landlord advised that “we also do not deem it reasonable to provide you with details of the individual who reported the threat or the specific contents of the threat that was made as this would identify the individual involved.”
On 1 April 2021, the resident expressed her dissatisfaction that the landlord had not treated the two complaints separately, as it had previously advised it would. On the same date, the landlord advised that as the complaints were related, it had decided to include them together, and that there was “no added value in raising this complaint separately” as the stage two response was investigated by a senior member of staff which would supersede a stage one investigation.
Also on 1 April 2021, the landlord provided a further stage two response which addressed its decision to only visit the resident’s property in pairs. It noted that the resident had made requests for evidence of the threats it alleged she had made and that, while she admitted to raising her voice, she disputed that she had ever made a threat. The landlord advised it considered there to have been threats made towards staff in 2015 resulting in an alert being placed on the resident’s record. The landlord accepted that “stressful situations can result in raised voices, however all of our staff also keep the right to feel safe in their duties and treated with respect.” Regarding the specific incidents in question, the landlord reiterated it was “unable to disclose this information as it would put our member(s) of staff at potential risk.” The landlord further noted that the resident wanted the alerts removed from her record, however, it advised it was unable to do so and that, while disputed by the resident, the notes represented the opinions of its staff reporting their concerns.
The landlord also noted that the resident had expressed concerns about the landlord’s staff member, Mr B, attending her home as he had previously “made totally unjustified accusations about not only my parenting skills but also that of others. Therefore, I do not trust him.” The landlord advised that it had taken legal advice on this issue, and as no evidence had been presented regarding Mr B being unprofessional, and as it only had a small team, it would continue to use Mr B when necessary to carry out repairs. It concluded that it was reviewing its decision to only visit the resident’s property in pairs and would advise her about the outcome of this separately.
The response also touched on the resident’s concerns that it had not made reasonable adjustments regarding her disability in relation to its communication with the resident. The resident expressed concern that the landlord had not always addressed her concerns in full and that she did not believe she was being treated in line with the landlord’s policy. The landlord advised that while there was no evidence to suggest the resident had been treated differently due to her disability, the landlord “could have been more proactive in speaking with you to identify if there were any adjustments that could be made to support your communications with us.” It subsequently offered £75 goodwill compensation. It further requested the resident provide it with further information about any further adjustments it could make in relation to her disability.
On 14 April 2021, the resident noted that the repair works had now been booked but expressed her dissatisfaction that she had not been informed about who was attending. The landlord subsequently advised that due to its small team, it could not accommodate requests for specific individuals, but that it was happy for the resident to arrange for a second person to also be present during the visit.

Assessment and findings

Leak

The landlord’s repair policy notes that for emergency repairs, it will initially make the property safe on the same day as the repair is reported, and then carry out further repairs within seven calendar days in instances where it is reasonable for the resident to live with a defect.
It is not disputed that the landlord’s plumber attended on 24 December 2020 following the resident’s report of a leak, and carried out actions which they concluded had stopped the leak. In the opinion of the plumber, a further part needed to be ordered to return the toilet to full working order, meaning they were unable to fix the toilet that same day. A further repair was booked for 4 January 2021, which was within the service standards set out in the landlord’s repairs policy.
The landlord has advised that, when at the resident’s property, the plumber advised how to manually operate the toilet flush by adding water to the cistern. The landlord has also advised that the resident did not raise a concern at this time about following this instruction. The Ombudsman was not present for this conversation and so it cannot be known exactly what was said. What is known, however, is that based on the call recordings provided to this service the resident subsequently advised on the same date that she was unable to manually fill the cistern due to her disability. Based on the landlord’s call notes, the landlord’s plumber subsequently disputed that the resident’s disability would prevent her from doing this, and that she was “able bodied.” The plumber subsequently refused to reattend.
In both its stage one and stage two formal responses, the landlord has noted that it had no record that the resident was disabled. This was incorrect. In the recording of the resident’s initial report of the leak, the resident clearly informed the call handler that she considered herself to have a disability. She also repeated this in subsequent calls. She had also noted she was unable to shut off the water supply due to her disability, having previously had her father do this. There is no doubt that prior to its plumber’s attendance, the landlord had been informed that the resident considered herself to have a disability, and that she considered that disability to affect her ability to operate the toilet. The landlord also indicated during its calls with her that it was on this basis that it was arranging for its plumber to attend.
While the landlord may contest that the resident did not raise concerns about manually filling the cistern during its visit, it is not evident it had queried with her whether her reported disability would affect her ability to do this, nor is it evident that at this point, the resident had attempted to do it. Following the resident discovering she was unable to do it, she reported this to the landlord at the earliest opportunity. It is evident that the plumber’s comment that they considered the resident to be “able bodied” was reported to the resident. There is no evidence to suggest the plumber was in any position to assess the resident’s disability, and to have heard this would have undoubtably been distressing for the resident. The landlord has not, however, offered an apology for these comments in its formal responses.
When the plumber initially left the property, based on its instructions to the resident on how to operate the toilet, it was reasonable for the landlord to conclude the resident could live with the defect prior to it returning to carry out a further repair. Following her further report that she was unable to add water to the cistern, however, the landlord could no longer reasonably conclude the resident could live with the defect. Its refusal to return to the property to carry out a further repair was therefore contrary to its obligation under its repairs policy. While the landlord has contested in its formal responses that it would have been unable to fix the upstairs toilet as a further part was required, it is evident that the resident had another toilet at the property which it could have assessed to see if it could be made operational. Again, in its formal responses, the landlord has advised it had no record of the downstairs toilet not being functional, however, in the telephone recordings, the resident noted to the landlord it was not functional on multiple occasions. Additionally, the resident had reported the broken toilet to her housing officer, who did not then raise it as a repair on her behalf, which is an action the Ombudsman would expect in line with best practice. The landlord should therefore have been aware this was an option to explore and had it previously raised a repair on behalf of the resident, she would have had a functioning toilet in this scenario. In any event, as noted above, given that the landlord could not reasonably conclude the resident could live with the defect, it should have at this time set out its position on what other options were available, which it did not do.
Given that the landlord had expressed it would not be returning to the property, and that the resident at this time (being Christmas Eve) did not have a functioning toilet or one that she could operate, it was reasonable for her to seek to arrange for her own builder to attend. In its stage two response, the landlord advised the resident had not “given notice of your intention to engage a third party before doing so.” This was incorrect as the recordings clearly demonstrate the resident had advised the landlord she had contacted a builder prior to her arranging for the builder to attend. She also noted that, given the landlord was unwilling to reattend, it was her intention to hire this builder. The issue over the invoice for this builder is discussed further below. The landlord’s call handler did not at this time indicate it should have a further opportunity to attend to the leak.
The resident has expressed her concern that her builder identified that there was no issue with the toilet and that the leak was related to the roof. Following this, the landlord sought to investigate the roof further. This was unable to take place throughout the course of the complaint. This service has not been presented with evidence which conclusively shows what the cause of the leak was, and so the landlord’s actions to initially address the toilet, and to subsequently arrange a further investigation of roof leaks were reasonable in the circumstances.
The Ombudsman considers it best practice to provide prior warning of any repair appointments where possible. The landlord arranged for its operatives to attend the resident’s property on 12 January 2021. This service has not been provided with any evidence to suggest that prior notice was given, nor has the landlord contested the resident’s position that no prior notice was given. Given that the landlord had previously advised it would attend by 10 January 2021, the Ombudsman would have expected the landlord to provide an update to the resident to advice this timeframe would not be met, and also to advise of its updated timeline, which it did not do. This clearly caused the resident inconvenience as she was not able to accommodate the repair operatives when they showed up and a further appointment had to be booked.
While the new booking was subsequently delayed, the Ombudsman recognises that this was due to the COVID-19 restrictions, and as the landlord effectively communicated the delays to the resident, this was reasonable in the circumstances.
When making arrangements for the rescheduled appointment, the resident expressed she did not want Mr A or Mr B to attend her property. It is evident that the landlord has sought to avoid sending Mr A to the resident’s property, but has disputed her concerns surrounding Mr B. Following her initial request, the landlord advised it had not received any specific evidence about unprofessionalism relating to Mr B and so advised it considered it reasonable to send him. Following further concerns from the resident that Mr B had previously said “untruthful” things about her, the landlord advised in its formal responses that it had sought legal advice relating the continued use of its operatives. It noted it had only a small team of available operatives and, in the circumstances, it would have to continue to use Mr B.
The Ombudsman considers it best practice to make accommodations for resident’s wishes about preferred operatives where possible and it is reasonable to do so. The Ombudsman understands, however, that where a landlord only has a small team, it is reasonable to use its available operatives even where this is not the preference of the resident. The landlord clearly articulated its reasoning for continuing to use Mr B, which was reasonable in the circumstances. Given that it is also assigning two operatives (which is discussed further below) to attend the resident’s property, along with its advice that the resident can arrange for an additional party to be present, this demonstrates the landlord has attempted to make reasonable accommodations to her concerns that Mr B may be untruthful in any reports about their interactions.
While the landlord’s attempts to arrange repairs and advice surrounding its operatives has been reasonable, its initial response to the resident’s reports of the leak amounted to service failure in the circumstances. Having initially attended and given appropriate advice, it subsequently refused to return to the property, despite the resident’s reports that she was unable to use her toilet given her disability. The landlord’s plumber also made inappropriate comments that she was “able bodied” without professional evidence to base these comments on. The landlord also failed to identify this in either of its formal responses, noting it had no record of her disability, despite the fact that the resident had clearly articulated this when reporting the leak on several occasions.
In its second stage two response, the landlord noted the resident’s concerns that she was being treated unfairly due to her disability. The landlord appropriately identified that having been made aware of the resident’s disability it could have made enquiries as to how it could provide reasonable adjustments for her, and it also appropriately used its discretion to award £75 good will compensation. It was also appropriate that it requested the resident advise what reasonable adjustments it could make for her.
Despite the compensation awarded in relation to not subsequently making enquiries about reasonable adjustments regarding the resident’s disability, a further amount of compensation is appropriate to reflect the distress caused by not returning to the property, and for the comments made by its plumber. In the circumstances, an amount of £100 is appropriate. An apology should also be provided to the resident by a senior member of the landlord for the comments made by its plumber, and for not identifying in its formal responses that the resident had reported her disability to the landlord at the same time she reported the leak.

Emergency builder invoice

As noted above, while the landlord has expressed in its formal responses that it had not been “given notice of your intention to engage a third party before doing so,” it is evident from the landlord’s call recordings that it had been given notice. These recordings were available to the landlord and so this should have been identified in a thorough investigation at either stage one and stage two of its complaints process, and it is concerning that the landlord has not identified this.
In the recording, the resident makes it clear she considers the landlord to be responsible for the cost of her emergency builder, prior to having booked them, and informs the landlord’s call operator that she intended to forward the bill to the landlord. This was an opportunity for the call handler to advise the resident the landlord’s position on when such an invoice would be paid or, if the call handler was unsure as to what the landlord’ position would be, to advise the resident that this could not be confirmed at that point and would need to be clarified. The call handler did not do this, however, and instead advised the resident to forward the invoice to the landlord’s head office so they can “take this further with you.” While this was not an express promise to pay the invoice, the tone of the call handler was encouraging to the resident, and they failed to reasonably articulate that the landlord may not pay the invoice.
The landlord has also advised it would not be paying the invoice on the basis it had not failed to carry out an emergency repair that would justify the builder attending. As noted above, however, it is evident that following the resident’s reports that she was unable to use the toilet due to her disability, the landlord could no longer reasonably consider to have carried out an emergency repair in accordance with its repairs policy, as the resident was unable to live with the defect. Having been informed of this, the landlord’s plumber refused to reattend the property. By the landlord’s own reasoning, it was therefore reasonable for the resident to arrange an emergency repair as it had failed to carry out an emergency repair.
The landlord’s refusal to consider paying this invoice was based on its incorrect position that the resident had not provided prior notice, and that it had carried out an adequate emergency repair. This would have caused distress for the resident, having been led to believe by the landlord’s call operator that the invoice would have been paid. This amounts to service failure and in the circumstances, on the basis of the resident’s distress and in order to restore her to the position she would have been in had the service failure not occurred, an amount of £265 reimbursement of the resident’s costs is appropriate.

Communication regarding release of recordings

The Ombudsman’s jurisdiction is set out in the Housing Ombudsman Scheme. Decisions regarding the release of personal information are outside of the Ombudsman’s jurisdiction and should be referred to the ICO, which the Ombudsman understands the resident has been in communication with the ICO regarding this issue. The Ombudsman can, however, investigate the landlord’s communication in relation to a request for the release of such information.
Following the resident’s request that the landlord provide her with copies of its call recordings, the landlord released a number of the recordings, but withheld the recordings made directly with its operatives. When queried why this was, the landlord advised it was on the basis it wished to “ensure the safety of our staff” following the resident making a “threat regarding the operative involved in this complaint.” Whether such reasoning is sufficient is a matter for the ICO to decide, however, it was appropriate that the landlord provided the resident with its reasoning in a timely manner and also that it advised it had liaised with the ICO when making this decision. It was also appropriate that the landlord provided the resident with information about the contents of the calls.
The issue regarding the landlord’s reluctance to elaborate on the alleged threats made by the resident is discussed further below in the context of its decision to only visit the property in pairs, however, the landlord’s communication around its decision to withhold these recordings did not constitute service failure as it provided a reason and was timely in its communications.

Visit in pairs flag

The Ombudsman publishes guidance for landlords for managing unacceptable behaviour (which can be viewed here: Managing unacceptable behaviour policy – Housing Ombudsman (housing-ombudsman.org.uk)). First and foremost, landlords should have a clear policy in place for how it manages such behaviour, including the steps it can take, and the ability for such steps to be reviewed. The landlord’s ‘at risk’ register policy sets out that following an incident in which the landlord becomes concerned there could be a threat of violence towards its staff, the landlord can place a flag on the resident’s account. The resident should be informed of such a flag, with a specific event referred to. Such flags allow the landlord to visit in pairs and should be reviewed every six months.
On a number of occasions, the landlord has raised concerns with the resident about alleged threats made towards its staff by the resident. In its stage one response dated 1 February 2021, the landlord made reference to a threat towards its staff occurring in 2015. It advised that as a result of this, it had placed a flag on the resident’s record requiring it to only attend the resident’s property in pairs. The Ombudsman considers such a course of action reasonable where there has been unreasonable behaviour from a resident. Such a course of action does not prevent the resident receiving services from the landlord and provides an additional witness to any interactions between the landlord and the resident. However, such a course of action must be justified by the landlord. It is not evident that the landlord advised the resident of this flag in 2015, nor did the landlord use the opportunity of its stage one response to provide a detailed history of any previous actions it had taken.
The Ombudsman’s guidance states that clear and specific examples of unreasonable behaviour must be presented to a resident when deciding to take such action. The landlord’s ‘at risk’ policy also requires the same. It is clear that the resident has requested such examples on multiple occasions throughout the course of the complaint, however, the landlord has declined to provide such examples, relying on protecting its staff as a reason for withholding such information. The landlord’s policy notes that it can withhold informing residents about a flag in “extreme” circumstances where to inform them would create a further risk. In this instance, the resident is already aware of the flag, and it is not clear how withholding details of alleged threats would protect staff. If the resident did indeed make such threats, she would evidently be aware of them. A landlord must be able to justify its steps taken to manage unreasonable behaviour and referring to incidents in 2015 and subsequent undated incidents is not sufficient to justify its decision to visit in pairs.
Additionally, when implementing any action, the landlord should advise a resident of clear timeframes such action will remain in place before being reviewed. The landlord has made reference to having reviewed its decision since 2015, however, it did not make it clear when this review took place, nor when a further review would occur. Given that its policy requires it review such flags every six months, there should have been around 10 reviews of the flag at the time of the complaint, however, the landlord has only referred to a single review. The Ombudsman considers it unreasonable to indefinitely impose measures for managing unreasonable behaviour and, in this instance, the landlord has had multiple opportunities to provide guidance to the resident on how long it intended to implement such measures, however, it failed to give such advice.
It is evident that the resident has also requested the landlord remove notes from its system about the alleged incidents of threats. The landlord advised it could not do this, to which the resident has expressed her concerns that such notes are “libellous.” The landlord’s advice that the notes represented the opinions of its staff and that they would remain on its system was reasonable in the circumstances. The landlord has also not sought to make such opinions public or share them with any other party.
As noted above, while taking action to manage unreasonable behaviour is reasonable, clear examples should be given and clear timeframes of when such action is to be reviewed should also be given. While, in its second stage two response, the landlord has now agreed to review its decision, it has missed multiple opportunities to provide the resident with information about such a review since the implementation of the flag in 2015, despite the resident making multiple requests. The implementation of such measures without adequate explanation is unreasonable and represents a service failure in the circumstances. In consideration of the distress this would have caused the resident, an amount of £50 compensation is appropriate. Additionally, the Ombudsman orders that the landlord provide clear examples of the unreasonable behaviour on which it based its decision to only visit the resident’s property in pairs, and also provide a timeframe for this decision to be reviewed.

Complaints handling

Following the resident raising a complaint about the landlord’s comments she had made threats towards her staff, the landlord advised on 22 March 2021 that it would include this in its stage two response for the complaint regarding its response to the leak. This issue was already part of the complaint relating to its decision to visit the resident only in pairs, and so it would have been helpful to have advised at this time that the issue would be fully addressed in its stage two response regarding this issue.
The resident requested that the landlord did not include this element of the complaint with its stage two response regarding the leak, to which the landlord agreed. However, it subsequently did include this part of the complaint in its stage two response regarding the leak. It also advised that there was no need to have had a specific stage one investigation as its stage two response was written by a senior member of staff which would supersede a stage one response. The Ombudsman disagrees with this view, the purpose of having two stages to a internal complaints procedure is for a resident to be able to have their complaint reviewed regardless of who carries out the initial investigation.
In this instance, however, the issue is closely connected to the complaint dealt with at stage one regarding its decision to only visit the resident’s property in pairs. It was therefore reasonable to only issue a stage two response specifically in regard to the allegations, especially given that the landlord touched on this further in its further stage two response regarding its decision to only visit her property in pairs.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its:
1. communication following the resident’s request for the release of its call recordings;
2. complaints handling.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its:
1. response to the resident’s reports of a leak in her bathroom;
2. response to the resident’s request that it refund the cost of her emergency builder;
3. decision to only allow its staff to visit the resident’s property in pairs.

Reasons

Leak

The landlord initially appropriately attended and made safe the leak reported by the resident and gave her advice about how to use the toilet prior to its next available repair booking. However, following the resident’s advice that she was unable to use the toilet as instructed by the landlord due to her disability, the landlord’s plumber declined to return to the property and made an unreasonable assumption that her disability would not affect her ability to operate the toilet. This would have caused distress to the resident and left her without a functioning toilet. On this basis, the landlord had failed to carry out an emergency repair, as per its repairs policy.
The landlord subsequently made appropriate arrangements to repair the damage caused to the resident’s bathroom during its visit, and to inspect the reported roof leak and downstairs toilet. It also gave a reasonable response to address the resident’s concerns about its operative Mr B attending her property. However, it failed to address the concerns raised about its response to the initial leak, and incorrectly stated it had not been informed about the resident’s disability or broken downstairs toilet, despite the resident clearly articulating this on multiple occasions to its out of hours team, the recordings of which it had access to.
Due to its failure to carry out an emergency repair as per its repairs policy, its plumber’s comments regarding the resident’s disability, and its failure to identify this in its formal responses, there was service failure by the landlord, for which compensation is appropriate in the circumstances.

Emergency builder invoice

In its formal responses, the landlord advised it would not be paying for the invoice as it had not received reports of a further leak prior to the resident arranging for the emergency builder to attend. Based on its own call recordings, however, the resident clearly advised the landlord that she was unable to use the toilet and noted that the plumber would not be returning. It was therefore reasonable for the resident to arrange for her own emergency builder, and she clearly advised the landlord she expected the landlord to cover the bill. The landlord’s call handler did not give her reasonable advice that this may not be the case, and instead encouraged her to forward the bill to the landlord’s head office.
Based on the landlord’s failure to advise the resident prior to booking the builder that it may not pay the bill despite having the opportunity to do so, and its incorrect reasoning that she had not given prior warning, there was service failure by the landlord, for which reimbursement of the resident’s costs in order to restore her to original position is appropriate in the circumstances.

Communication regarding release of recordings

As noted above, a decision on the reasoning used by the landlord for not providing copies of its call recordings to the resident is outside of the jurisdiction of the Ombudsman. The landlord did, however, communicate its reasoning to the resident in a timely manner, which was reasonable in the circumstances.

Visit in pairs flag

The landlord failed to give clear examples of the resident’s behaviour which led it to implement measures involving only visiting in pairs. This denied the resident the chance to respond to the allegations, despite her requesting for examples on multiple occasions.
Additionally, the landlord missed multiple opportunities to provide clear timeframes for it to review its decision to implement such measures, which would also have caused distress for the resident.

Complaints handling

While there was confusion surrounding how it would respond to each element of the complaint, the landlord addressed the subject matter of each issue at stage one and stage two, which was reasonable in the circumstances.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay £415, comprising:
1. £100 compensation for any distress and inconvenience caused to the resident by its failure to carry out an adequate emergency repair in response to her reports of issues with her toilet, and for its comments regarding her disability;
2. £265 reimbursement of costs to the resident for its failure to provide adequate advice about her arranging for an emergency builder, and its incorrect advice that she had failed to warn it she was arranging for one;
3. £50 compensation for any distress and inconvenience caused to the resident by its failure to give clear examples of her unreasonable behaviour as part of its decision to implement unreasonable behaviour measures, and its failures to provide timeframes for review of such measures.
This amount must be paid within four weeks of the date of this determination.
A senior member of the landlord to write to the resident within four weeks of the date of this determination to offer apology for the comments made by its plumber, and for not identifying in its formal responses that the resident had reported her disability to the landlord at the same time she reported the leak.
The landlord to write to the resident within four weeks of the date of this determination and (if it has not done so already) provide examples of unreasonable behaviour on which it based its decision to only visit the resident’s property in pairs and ensure it has provided a timeframe for this decision to be reviewed, in line with its ‘at risk’ policy.

Recommendations

The landlord to write to the resident within four weeks of the date of this determination and (if it has not done so already):
1. reiterate its offer of £75 compensation relating to its failure to enquire as to what reasonable adjustments could be made in relation to her disability;
2. reiterate its request that the resident advise what reasonable adjustments could be made to assist her and updates its customer records accordingly.
The landlord to provide training for its housing officers to forward reports from residents of disrepair to its repairs team.