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Southwark Council (202006396)

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REPORT

COMPLAINT 202006396

Southwark Council

21 February 2022


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 resident’s complaint is about the landlord’s decision not to install a hand basin in the bathroom of the property.

Background and summary of events

  1. The tenant has a secure tenancy which began on 22 April 2019. The property is a three bedroomed house and he lives there with his wife and two children. The property has one bathroom which contains a bath and no handbasin. There is one toilet in the property, which is in a separate room which has a handbasin.
  2. On 12 December 2019 an email on behalf of an MP was sent to the landlord regarding the issue of the installation of a hand basin in the bathroom. The email notes that the resident advised the MP that he had discussed the issue with his housing officer earlier in the summer. She had advised that she would contact “the council” about installing a sink but he had still not heard back despite following it up with the housing officer again.
  3. On 2 January 2020 the landlord wrote to the resident’s MP stating that the bathroom at the property “is very small and it is not possible to fit a sink in the area without it presenting an obstruction. This information has already been provided to [the resident].”
  4. The landlord received a stage 1 complaint that the landlord would not install a wash basin from the resident via this service on 18 November 2020. It sent a response by email which has been provided but is undated. The landlord wrote that the property had been advertised and let with a bath in the bathroom and this would not be changed “unless a medical report warranted a conversion by our adaptions unit”. The landlord stated that the small size of the bathroom meant that a wash hand basin could not be installed in the bathroom.
  5. On 23 February 2021 this service wrote to the landlord asking that it provide a stage 2 response letter to the resident.
  6. The landlord has provided what it submits is a stage 2 response which is dated 11 March 2020 but refers to being in response to a complaint received from the resident on 4 February 2021. The date appears to be a typographical error and the letter was in fact sent on 11 March 2021. The landlord stated that when the resident moved into the property he filled in and signed a New Homes Satisfactory Survey” and ticked the “Very satisfied” box to the question asking about satisfaction with the condition of the property. The landlord stated that this means that the resident “accepted the layout of the dwelling which included no wash hand basin in the bathroom”. The landlord further noted that the resident has not provided “evidence of a medical requirement” for the additional works. The landlord stated that it “found no fault” with the layout of the property and found “no reasonable grounds to replace [the] bath with a shower”.

Assessment and findings

  1. The Ombudsman starts by noting that it is not the role of the Ombudsman in this case to substitute itself as decision maker for the landlord and determine the specific sanitary hardware that should be installed in the property. Rather, the key issue is whether the landlord has acted reasonably in its investigation and decision making.
  2. As a general principle underpinning its consideration of this matter, the Ombudsman has started from the position that replacing the bath with a shower and installing the handbasin would be considered to be an improvement to the property. It is reasonable for the landlord to take into account the cost of any improvement in the context of its funding limits and it has a responsibility to carefully manage its limited financial resources. However, the Ombudsman also recognises that the limited handbasin availability at the property understandably has an impact on the life of the residents, including their two young children. The Ombudsman notes the Housing Health and Safety Rating System which, when referring to personal hygiene factors that could affect likelihood and harm outcomes, includes reference to the need for a “sufficient number of suitably connected and sited wash hand basins for occupants”. The impact of the availability and locations of handbasins on residents can reasonably be expected to be something that the landlord at the very least turns its mind to and takes into account when deciding whether to undertake the request for an improvement.
  3. The landlord’s submission is that its decision to decline to make the alteration has been based on three grounds: (i) the room is very small and it is not possible to install a sink without “presenting an obstruction to access” (ii) the resident accepted that there was no handbasin in his response to a home satisfaction survey about his move into the property, and (iii) the resident has not provided any medical evidence to demonstrate that a handbasin is required.
  4. The Ombudsman has considered whether these were reasonable grounds for the landlord to decline to make the alteration and whether there are any other grounds as to why the landlord’s decision making process may not have been reasonable.

Room size

  1. The landlord has submitted that the room is very small and it is not possible to install a sink without “presenting an obstruction to access”. The landlord submits that it has been unable to locate survey or inspection reports and there is no evidence to indicate that it has undertaken a specific investigation to assess the viability of this option.
  2. On the face of it, the proposal to alter the room to install a shower rather than a bath so that there is room for a handbasin appears to be a credible solution to the risk of obstruction by the handbasin. However there may be reasons why this may not be an appropriate solution, including that the costs for it are not reasonable.  However, the Ombudsman is not persuaded that the landlord has given due consideration to this proposed solution or explained why it considers this to be an improvement and therefore that it does not have to complete this work. There is also no evidence that the landlord has considered whether and how the works could fit within ongoing general improvement works and programmes. The Ombudsman therefore considers that the landlord has not taken reasonable investigatory steps to justify its reliance on the size of the bathroom as a ground to decline the alterations. This was a failing by the landlord.
  3. There is also no evidence that the landlord has advised the resident that he has the right to undertake the improvement works himself, at his own cost and on the condition that it has provided the relevant permissions. The Ombudsman considers that this is also a failing by the landlord – whilst this service understands that this is not the solution that the resident was seeking, the landlord should have ensured that he was aware of this as an option.

Home Satisfaction Survey 

  1. The landlord’s position is that the resident accepted the layout of the property by stating “very satisfied” in the condition survey.
  2. The survey is titled “New Homes Satisfaction Survey”. At the top in bold it states “[The landlord] is interested in hearing your views on your recent move, as part of our plans to improve services” and there is a privacy statement. The question which the landlord refers to is question 5 and is “Overall how satisfied were you with the condition of your home when you moved in?”. The tenant has ticked box 4 “Very satisfied”.
  3. The Ombudsman is not persuaded that it is fair for the landlord to take this document into account when making its decision about his request to install the handbasin. The survey is clearly presented as a general feedback document that will be taken into account by the landlord as part of a broader consideration of the way it provides its services. There is no indication that the resident will be bound by the responses and that it would have any impact on the rights and obligations of the resident and the landlord. It is also not clear that the question relates to the layout and fittings of the property – the refence to “condition” could quite reasonably be considered to refer to the cleanliness and presentation of the property rather than the basic layout and fittings of the property. Further, the report was completed shortly after the resident moved in, so the family would not have had the opportunity to experience how the household layout impacted on their use and enjoyment of the property.
  4. The Ombudsman finds that it was not reasonable for the landlord to take the survey into account in making its decision and it was a failing that it did so.

Medical evidence 

  1. The landlord has stated that the resident had not provided medical evidence for the need for the alterations. It has referred to its Adaption policies, which state the need for an assessment by Occupational Therapy.
  2. The Ombudsman does not find it a failing by the landlord that it has referred to the issue of medical need. However, the Ombudsman would expect the landlord to clearly explain the type of information that the resident would need to provide, particularly noting that the resident has referred to the impact of the set up on his health. It does not appear from the communications between the parties that the landlord has asked the resident if he has a relevant pre–existing medical condition and clearly set out to the resident what the process is to apply for an adaption for pre–existing medical reasons. If the landlord is to rely on lack of medical need as a ground for not making the alterations, it must then follow appropriate processes to determine this – which as a first step requires that it explain to the resident what the requirements are if he seeks to rely on need due to a pre existing condition.

General approach

  1. As well as the failings set out above, the Ombudsman considers that the landlord has failed to recognise and demonstrate understanding for the resident’s circumstances, including that there are two young children in the household. The landlord does not appear to have been solutions orientated in its response to find a reasonable outcome to resolve the issues the resident was experiencing, whilst still of course balancing its own costs and other concerns. For example, it may be possible for a handbasin to be more easily installed in another room in the house. Whilst not ideal, this may go a long way to address the issues the resident is experiencing. There is no evidence that the landlord turned its mind to solutions such as this.

Redress

  1. For the reasons set out above, the Ombudsman therefore concludes that the landlord’s decision to not make the bathroom alterations has not been reasonably made.
  2. It is not appropriate for the Ombudsman to therefore require that the changes be made. However, the Ombudsman considers it appropriate to require the landlord to undertake a new investigation and decision making process with respect to the resident’s request. In doing so, the landlord must give due and reasonable consideration to the proposal to change the bath to a shower to solve the space problem or other layout alternatives, give the resident appropriate information on the submissions he would need to make regarding health issues and explain to the resident the options that he may have to undertake and fund the works himself as he has a right to improvement in the tenancy agreement. The landlord must not rely in any way on the resident’s response to the New Home Satisfaction Survey.
  3. Given the length of time that this matter has been ongoing, the landlord should undertake the process as soon as possible and communicate to the resident in a clear and timely manner about its investigation and decision.
  4. For the avoidance of doubt, the Ombudsman makes no finding in this decision as to what the outcome of the new investigation and decision making process should be.
  5. The Ombudsman also requires that the landlord pay the resident compensation for the distress and inconvenience caused by its failings in considering the resident’s request.
  6. In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive but to provide redress for the impact of any failings by the landlord on the resident. In the case of compensation for distress and inconvenience, we are not able to quantify a definitive loss and the intention of such an award is to recognise the overall distress and inconvenience suffered by the resident. The Ombudsman refers to this service’s Remedies Guidance when considering appropriate amounts.
  7. In this case the matter has been ongoing for over two years. The Ombudsman considers that this is a significant period for the resident to have not received a reasonable decision from the landlord regarding his request for the alteration. The Ombudsman considers that £200 compensation is appropriate.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme (the Scheme), there was a service failing in relation to the landlord’s consideration of the tenant’s request for the installation of a hand basin in the property’s bathroom.

Reasons

  1. The three grounds for declining the resident’s request were not fully explained by the landlord. The landlord has failed to demonstrate understanding the resident’s situation and take a solutions based approach.

Orders

  1. The landlord shall undertake relevant enquiries, taking into account the points noted in this report, and undertake a new investigation and decision making process with respect to the resident’s request. The landlord should write to the resident to set out the outcome of this review within four weeks of the date of this report. A copy of this letter should be sent to this service..
  2. The landlord shall pay the resident £200 compensation for distress and inconvenience caused by its failure to fully explain its position and reasons behind its decision or to advise the resident of his right to make improvements to the property.