Swindon Borough Council (202119090)

REPORT

COMPLAINT 202119090

Swindon Borough Council

28 March 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 complaint is about the level of compensation offered by the landlord in response to the resident’s complaint about the length of time it took to carry out adaptations at her property.

Background and summary of events

Background

2. The property is a four–bedroom house owned by the landlord which is a local council. The resident, with her son and daughter, moved into the property in October 2016 from another of the landlord’s properties, after it was identified as being suitable for an extension to provide more space for medical equipment required by the resident’s son due to his health condition.

Summary of events

3. The landlord began setting up the initial background stages of the building project in January 2017.
4. Planning approval was granted in January 2018 and Building Control Permission was granted the following month, with the contract being ready to go out to tender in April 2018.
5. On 12 October 2018 the resident’s sister made a complaint to the landlord on the resident’s behalf. She said that the resident had been told three years previously that she was entitled to an extension and that there had been no communication from the landlord’s project surveyor at all. This was causing stress for the whole family and the resident’s health was getting worse, particularly back pain, due to having to care for her son, as she had to do everything for him. The extension was needed as the resident’s son needed a hoist and bathroom and the property was too small currently. A stage one complaint was opened by the landlord on the same day.
6. On 25 October 2018 the GP wrote a letter explaining that the resident’s son was unable to walk due to his condition and so required lifting and aids. The required aids did not currently fit into the house and so an extension was needed. He understood that the resident had been waiting three years for this and that the delays were having a significant effect on the health of the son and the resident, both physically and psychologically.
7. The stage 1 complaint was closed on 26 October 2018. The landlord’s note says: ‘Case closed: Visited (the resident) to explain we are ready to go out to tender the end of October 2018. I have apologised for the delay caused by compiling information on 4 other extensions so they can be procured all together to ensure we get best value through scale of economy.’
8. On 4 November 2018 the resident responded by saying that was not an acceptable reason for the delay. She said that the surveyor had been telling the Occupational Therapist for months that the work had already gone out to tender and that he had recently told her it had gone out to tender, not that it was going out to tender. She said it was unacceptable that the complaint was closed so quickly with such little response. She said the complaint needed to be reopened for complete investigation of the landlord’s failure in care for her and her son. Her son had lost the use of his legs and his arms would be next. The resident had seen her GP for depression and back pain. She calculated the number of times that she was having to lift him and explained that he was getting bigger and had needed the extension and equipment since the past three years.
9. In April 2019 the tendering process had finished, and the project awarded to a contractor. There was a hold up due to changes to the roof design, with the works actually beginning in July 2019.
10. On 9 August 2019 the resident wrote to the landlord again. She spoke about the neglectful behaviour and the dishonesty shown towards her and her family. The resident said that the landlord was fully aware of her son’s condition back in 2014 when he was diagnosed and the need for appropriate accommodation for his deteriorating condition and future requirement for carers. It was deemed best that she moved from her existing home because of some issues with the neighbours and so they moved to the property in October 2016 as it was assessed as appropriate for having an extension build on to it. She said the surveyor was her point of contact and she was continuously being told that the work had gone out to tender and deadlines given.
11. The deadline has passed, and she made contact, only to be told that tender had not gone through, and the cycle would start again. This had repeatedly occurred from 2016 to 2019. The lack of space meant that care was being provided to her son without any equipment and so they (the resident and her young daughter) were straining their backs and making her son’s condition worse, as his back was not being supported. The resident said this resulted in her son’s spine becoming curved and needing urgent surgery. Her son had recently had a hospital appointment where it was confirmed that he had reduced lung function. Therefore, the work having been delayed now put him at increased risk of chest infections as the dust was a health risk. The resident said they had now been living at her mother’s house, with her sleeping on the sofa, to protect her son. The landlord would not place them somewhere safe during the build, which was causing more distress.
12. In the same letter the resident said that she felt broken and expressed being overwhelmed by the situation. It was negatively affecting her to a considerable degree, such that she was having suicidal thoughts. She said she had made an in-depth complaint before that was closed without a proper investigation or contact with her. The resident asked for compensation for the neglect her son had suffered and because his condition had progressed due to the lack of proper equipment.
13. On 11 August 2019 the resident added that her son’s surgery was pending because he would have complex care needs after the major surgery and the surgeon would therefore not operate until after the extension was completed.
14. On 19 August 2019 the landlord told the resident that it would investigate her complaint at stage 2 of the process because it could see that this was not the first time that she has brought her concerns to its attention. The landlord said that, due to the complexity of the case, the response would likely exceed its usual response time.
15. The building work was finished and handed over on 27 September 2019 with some snagging works taking place on 11 October 2019.
16. On 25 October 2019 the landlord provided its stage 2 response. It said that the extension became a relatively complex project. The works were mainly delayed due to an increase in the range of items that had to be commissioned at a time when the same project team was delivering additional projects. The landlord said that by identifying the reasons for the delays, it would apply lessons learned to ensure that similar projects were prioritised; planned more efficiently and delivered in a more timely manner. In future, when a welfare adaptation extension was commissioned, a wider working group would be created comprising of all necessary personnel from concept to completion. In the first instance a timeline would be agreed between departments for the various stages of the design, procurement and build. To ensure transparency that timeline would be communicated to the tenant so that they had a chance to comment. Works such as extensions would be discussed at regular intervals in team meetings to allow escalation should a project fall behind.
17. The stage 2 response ended by apologising for the time taken to complete the extension and the impact that had placed on the resident’s family. The landlord offered £500 as a gesture of goodwill.
18. The Ombudsman is unclear of when the resident then re-contacted the landlord. It is on 9 December 2020 that the landlord confirmed to the resident that her complaint had been passed to the Independent Complaint Panel (ICP) which was made up of tenant representatives, as its stage 3 local resolution process. It was noted that the resident was happier with the stage 2 response but did not feel that £500 was fair compensation for the time and trouble that the issues had caused her. The resident stated that she would like money towards chiropractor appointments to help with her back problems and that any additional money could be put towards help to care for her children.
19. On 15 July 2021 the resident wrote to the ICP to say she had been asked by the landlord whether she wrote to anyone about wanting to be rehomed whilst the work was carried out. She explained that she had not as she had had a face-to-face conversation with the surveyor, who had told her that the landlord would be unable to move her.
20. The ICP interviewed some relevant members of staff, including the surveyor. It was stated during interview that such a project should be completed within 18 months as long as it was planned. The ICP then also interviewed the resident.
21. On 23 September 2021 the ICP provided the report of its investigation to the resident. It concluded that:
    1. The landlord failed to deliver the agreed extension within a reasonable time frame.
    2. The landlord failed to deal with the complaint in a professional and timely manner.
    3. Communication with the resident was inadequate in all areas.
    4. Throughout the entire process the landlord seemed to have lost sight of its duty of care to protect vulnerable tenants.
22. The ICP was particularly critical of the landlord’s decision to include the property in a tender phase with other properties, in the hope of saving money. This was in spite of the action being flagged as potentially detrimental to the wellbeing of the resident’s family. The ICP’s opinion was that the landlord had neglected the fact that the prime reason for the extension was medical need. The ICP also considered it unacceptable that the landlord had failed to offer alternative accommodation to the resident.
23. The ICP highlighted the inadequacy of the landlord’s complaints procedure, saying there seemed to be no coordinated process in place to deal with stage 2 (and beyond) complaints and that nobody was willing to take responsibility to properly organise and administer an adequate process.
24. The ICP recommended that the landlord should offer compensation of no less than, but preferably in excess of, the £500 offered at stage 2. Additionally, the ICP felt that the landlord should make a gesture of goodwill payment to cover the cost of 10 chiropractor appointments for the resident and some money towards the cost of a family holiday in the UK. Most importantly of all, the resident should be offered a complete, unreserved and sincere written apology for all the distress caused to her and her family. The landlord had 20 days to respond to the ICP’s report.
25. The landlord’s housing complaint review group met on 29 September 2021 and agreed with all four conclusions (as listed above) reached by the ICP. The group agreed with the recommendations made in the stage 2 response and by the ICP and stated that a new process around major welfare adaptations would be drafted. Part of the process would include regular communication with tenants, with notes being kept in writing. With regard to complaint handling, it stated that a comprehensive complaint handling process would be written and advised to all staff and that training for staff would be mandatory. The group also stated that staff would be advised on how to escalate complaints along an agreed pathway and that a designated person would take responsibility for all stage 2 complaints.
26. The complaint was next discussed at the landlord’s Housing Heads of Service meeting on 11 October 2021 who again agreed with the ICP report and made a final decision about the level of compensation. In addition, it made a further recommendation to develop a compensation policy in liaison with customer services.
27. On 13 October 2021 the landlord’s Director of Housing wrote to the resident in response to the ICP report. The landlord apologised for the manner in which the building work was managed, saying that three years was not an acceptable timeline. It accepted that it had failed to communicate effectively with the resident and that it had also failed to respond to her when she first raised her complaint. The landlord confirmed that tenants undergoing major works would now have a single point of contact and be regularly updated and that it would ensure that the medical wellbeing of its tenants should be considered at all stages of adaptations and, where necessary, medical advice sought and taken into account. The letter ended by offering the resident £750 compensation for the distress and anger caused.
28. The resident has not accepted the £750 offered. She has told this Service that she would like the Ombudsman to consider not only the length of time it took to carry out the work but the effects the delays had on the health of her and her family. Her 11year old daughter was lifting her brother without any equipment and the situation has affected her daughter’s mental health. The resident suffers with significant back pain and her mental health has also suffered. The resident said that the landlord has admitted that it did not put her son’s medical needs above its cost saving endeavours. That caused her son unnecessary suffering and held up his surgery, requiring a more extensive procedure than the one originally needed.

Assessment and findings

29. The resident has described the impact the issues raised in the complaint have had on the physical and mental health of her son, daughter and on her. The Ombudsman does not doubt the resident’s comments. However, it is beyond the remit of this Service to decide on the health impact of landlords’ actions on residents. The resident may wish to seek independent legal advice on making a personal injury claim as this is the appropriate means of escalating this aspect of her complaint.
30. Our position here is in accordance with paragraph 39(i) of the Scheme which provides that: ‘The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure’.
31. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of the errors by the landlord, based on our assessment of the issues.
32. The health and medical needs of the resident’s son should have been at the core of the landlord’s process and yet other considerations, such as trying to save money, were prioritised instead.
33. The ICP’s investigation was extremely thorough and so there is no need to repeat its analysis in detail here. This Service agrees that the time taken to complete the extension was wholly unacceptable. The resident’s son was 6yrs old at the time the family moved into the property and plans for the extension initiated. He was 9yrs old when the works were completed. Three years is a long time for anyone in that situation, but for a child with a life limiting illness, whose mobility reduces year on year, it represents a huge amount of time. There was certainly a lost opportunity in making the resident’s son’s life more comfortable and his care more dignified and safer for his carers.
34. In addition, the way that the resident’s complaint was handled was completely inadequate. The stage 1 response was brief and dismissive, and the landlord should have recognised in November 2018 that the resident wished to make a stage 2 complaint. As it was, it was not until August 2019 that a stage 2 complaint was opened. The statement in the stage 2 response that the delay was mainly due to an increase in the range of items that had to be commissioned is not something that is recognised by the ICP report. Although the stage 2 response does accept fault and talks about learning, it fails to sufficiently acknowledge the considerable impact of the delays.
35. However, the significant failings identified by the ICP have been acknowledged by the landlord and it has fully accepted the conclusions reached by the ICP.
36. The landlord has learnt lessons from this case and put systems in place to prevent a reoccurrence, in terms of both managing projects for major welfare adaptations and its complaints process. This Service considers that this approach by the landlord, in response to the complaint, is reasonable and it reflects the Ombudsman’s own Dispute Resolution Principles of ‘learning from outcomes’. Nonetheless, its offer of compensation was not proportionate to the impact on the resident at the time of its final response.
37. The landlord’s response to the ICP report was to apologise to the resident for the delay and to increase its compensation offer to £750 for the distress and anger caused. However, in the Ombudsman’s view, it still fails to acknowledge the severity of the impact of its delays in undertaking the works on the resident and her son, as a disabled child with a life limiting illness, or the length of time and effort expended by the resident in chasing a resolution of the issues.  
38. As such, the Ombudsman considers that the landlord should increase its compensation offer to more fully reflect the complexity of the impact on the resident and her family in the particular circumstances of this case. This also considers the impact of the landlord’s failure to fully and appropriately deal with a formal complaint in line with its policies. It must be noted that the further recommendations of the ICP, with respect to the chiropractor and holiday offers, are not within the scope of this Service to comment on.

Determination (decision)

39. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration with respect to the level of compensation offered by the landlord in response to the complaint about delay in carrying out adaptations to the property.

Reasons

40. Whilst the landlord offered an apology and has evidenced learning from the complaint, its compensation offer failed to fully take into account the extent of its failings and the impact on the family.

Orders

41. The Ombudsman orders the landlord to pay the resident £1,000 compensation within four weeks in recognition of the failings identified in this complaint.

Recommendation

42. As part of its commitment to improve its complaint handling process, the landlord should consider sharing the Ombudsman’s Complaint Handling Code with its staff members who deal with complaints in order to ensure that complaints are responded to in line with best practice. This is found on our website using the link: https://www.housing-ombudsman.org.uk/landlords-info/complaint-handling-code/