Clarion Housing Association Limited (202015630)

REPORT

COMPLAINT 202015630

Clarion Housing Association Limited

26 October 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

This complaint is about the landlord’s:
1. Handling of repairs to the resident’s specialist disabled toilet.
2. Complaint handling.

Background and summary of events

Background

The resident is an assured tenant of the landlord. The tenancy commenced on 24 May 2004. The property is a two bedroom, ground floor flat. There is evidence from the landlord’s repair records that the landlord was aware of the resident being a ‘‘Vulnerable disabled tenant who is wheelchair bound’’.
The property was adapted to meet the needs of the resident on two occasions. A level access shower was installed in 1998 and the specialist toilet referred to in this report was installed at some point between November 2019 and January 2020. The resident has explained that the toilet rises and lowers to enable her to sit on the toilet and provides warm water washing and warm air drying.
The local authority pest control team have confirmed that they attended the resident’s property on six occasions between 7 August and 18 September 2020, and that they emailed the landlord after their visits on 7 and 17 August 2020. The landlord has advised that it has no record of these being received and logged.

Summary of events

On 17 August 2020, resident reported a leak from her specialist toilet, the resident advised that the local authority pest control team had visited her property, to treat a rat infestation in her bathroom and had advised that the soil stack behind the toilet needed to be looked at. The landlord noted that a plumber was required and that it needed to be a joint visit with the Mechanical and Electrical (M&E) contractor due to it being a specialist toilet. The landlord advised the resident that an appointment had been booked for 28 August 2020.
On 28 August 2020, a plumber attended the resident’s property and reported that they had disconnected the toilet and identified the cause of the leak as a cracked stack pipe buried in the concrete. However, as they had discovered a dead rat behind the back panel the plumber said that they could not do more until the rat was removed. The resident called the local authority pest control, who were already carrying out a course of treatment to eradicate a rat infestation, who attended and removed the rat later that day, by which time the plumber had left the property.
The resident called the landlord the same day to ask when the plumber would return to complete the repair and reinstate her specialist toilet as she had to have a friend help her use the second toilet in the property, ‘‘with great difficulty’’, and that the toilet had been placed against the shower seat in her wet room so she could not use her shower either. The contact centre advisor asked that urgent assistance be arranged. The landlord raised a new job, noting that the concrete floor needed to be dug up to access the damaged stack pipe. The job was classified as routine and given a target date of 15 September 2020.
On 4 September 2020, the resident’s local councillor emailed the landlord to complain that the resident had been left with only a standard toilet, which she struggled to use independently and that the disconnected toilet was left resting up against the resident’s shower chair, so she was unable to use that either. The councillor said that the resident had been chasing the landlord all that week to complete the repair but was told the earliest appointment she could have was 15 September 2020. The councillor said that given its urgency they would appreciate anything the landlord could do to bring forward the appointment to repair and reconnect the resident’s toilet.
The Head of Repairs and Maintenance responded on 4 September 2020 to say that they were organising attendance at the property that afternoon to complete the works to the stack pipe and that after that its M&E contractor would need to attend to reinstall the specialist toilet. Two operatives attended the property the same afternoon and moved the toilet away from the shower chair. The resident was offered grab rails in the second toilet but explained that she would still be unable to use it as the toilet was too small and she could not pull herself up safely. The stack pipe was not fixed during the visit on 4 September 2020 and so when the M&E contractor attended to reinstall the specialist toilet they were unable to do so.
On 7 September 2020 the resident called the landlord to log a formal complaint about its response to her report of a fault with her specialist disabled toilet. The resident explained that she was left with only a standard toilet, which she struggled to use independently. The resident said that she was extremely frustrated by the service provided by the landlord, especially given that she was a vulnerable disabled tenant and that it was nearly three weeks since the plumber first attended and disconnected her specialist toilet. The resident questioned why the job had not been raised an emergency repair.
A plumber attended on 15 September 2020 to carry out the repair to the damaged stack pipe. On 16 September 2020 the resident called the landlord as she was concerned that as the boxing in had not been completed she may not be able to have her specialist toilet reinstated on 18 September 2020. The contact centre advised the landlord’s planning team and asked that they call the tenant to advise. The landlord’s repairs records noted that the resident then called again on 17 September 2020 and was advised that ‘‘the matter had been referred to planners and that (the landlord) would be in touch’’.
The boxing in was completed on 18 September 2020 and the specialist M&E contractor attended later the same day to reconnect the specialist disabled toilet. The local authority pest control service also visited the resident’s property on 18 September 2020, following which they confirmed that the rat infestation had been brought under control and no further pest treatment was required.
The landlord issued its stage one response on 9 October 2020. The landlord:
1. Acknowledged that the toilet was disconnected on 28 August 2020 and could not be repaired at the time due to hire plant equipment requirements to complete the works. The landlord confirmed that the follow up appointment was booked for 15 September 2020 to allow time for pest control to eradicate the rat infestation and that no earlier appointments were available.
2. Said that the resident had use of a second toilet, was offered grab rails but these were refused and that the resident’s Occupational Therapist (OT) had provided a wrap round toilet frame but this was too small for the her.
3. Noted that the resident felt that the landlord should have arranged for the pest control but that it did not carry out pest control as this was the resident’s responsibility to organise.
4. Said that it would not pay the resident compensation as from the date it first attended the repair to when it completed the works was 15 working days and its repair policy stated that it would aim to repair within 20 working days.
On 11 December 2020, the resident’s councillor emailed the landlord, on behalf of the resident, to request that her complaint be escalated to stage two. The councillor explained that the resident was dissatisfied with the landlord’s response, which he said denied that there had been any service failure on the landlord’s part. The councillor said:
1. That the resident did not accept it was appropriate for the landlord to give itself 20 working days to fix her specialist toilet.
2. Whilst the landlord did offer to install grab rails in the resident’s second toilet she was still unable to use that toilet as it was small and she could not pull herself up safely.
3. As a result of the landlord’s delays and persistent refusal to treat this job as an urgent one, the resident had to use a commode to go to the toilet, which she would have struggled to do had she not had a friend to help her.
4. That this would be demeaning enough for a short period, but was totally unacceptable for the resident to be left in this situation for three weeks.
The landlord issued its final response on 19 February 2021. The landlord said that:
1. The information the resident had been given with regards to pest control not being its responsibility was incorrect and that, in hindsight the operative could have removed the rodent found blocking the stack pipe using the correct personal protective equipment (PPE). However, this would not have addressed the ongoing issue of pests having access to the pipe as that required a specialist contractor.
2. A concrete breaker was required to gain access to enable the section of the soil stack to be removed and replaced, that there was no delay caused by the hire of this equipment as it was obtained in readiness for the appointment on 15 September 2020, at which time the works were completed.
3. The repair was correctly categorised as a routine repair, with a 28 calendar day Service Level Agreement (SLA), that the repair was completed within this time-frame and that the repair was not treated as an emergency as the resident had a second toilet in the property.
4. The resident had advised that her OT was going to arrange for a wrap round toilet frame to be delivered, however this was not feasible due the size of the room. The landlord acknowledged that it should have followed up with the resident after she liaised with her OT, to ensure the toilet was made usable.
5. It regularly communicated with the resident throughout the repair and offered apologies on numerous occasions for any inconvenience caused.
6. The resident’s shower seat was not accessible between 28 August and 4 September 2020 due to the toilet seat being left against it and that it appreciated the inconvenience this caused the resident.
The landlord offered the resident its apologies for the difficulties she experienced and the delay in its providing its response and offered a total of £450 compensation, made up as follows:
1. £50 for the delay in providing its stage 2 response.
2. £100 for the inconvenience incurred due to the shower seat not being accessible between 28 August and 4 September when the toilet was left against it.
3. £200 for the impact and inconvenience of the second toilet not being feasible for the resident to use due to her disability.
4. £100 for not following-up to ensure the resident’s second toilet was usable.

Assessment and findings

Relevant policies, procedures and agreements.

Under Section 11 of the Landlord and Tenant Act 1985, the landlord is obliged to keep in repair and proper working order the installations in the dwelling house for the supply of sanitation. This obligation is confirmed in Clause 12.2 of the tenancy agreement which states that the landlord is obliged to maintain in good repair and working order toilets, flushing systems and waste pipes.
The landlord’s repairs and maintenance policy provides for two priorities of repair; emergency and non-emergency. Emergency repairs are classed as those which present an immediate danger to the resident or public and are to be attended and made safe within 24 hours. The policy notes that further repairs may then subsequently be required. In the case of non-emergency repairs, an appointment is to be offered to the resident within 28 calendar days of the repair being reported.
Section 5.2 of the landlord’s tenancy management policy states that residents are responsible for removing pests from their home but that the landlord will identify and block any potential access points in the structure of its properties. Clause 12.5 of the tenancy agreement states that the tenant shall let the landlord know as soon as practicably possible of any sign of infestation by household pests and will co-operate with the landlord in whatever steps are reasonably necessary to keep all tenants’ homes free of infestation.
The landlord’s vulnerable resident’s policy states that ‘‘a responsible social landlord, (its) overall objective is to ensure that our vulnerable residents receive the services and assistance they require to sustain their tenancy’’. The policy goes on to explain that in order to achieve this:
1. The landlord will embed in its way of working consideration of vulnerable residents’ needs, abilities and circumstances in the delivery of its services and ensure residents receive the required service and that each service area will consider what additional support, consideration or variation in usual service provision is appropriate for vulnerable residents. Section 7.0 (Provision of services).
2. When a resident contacts the landlord to request a repair, the contact centre call handler will confirm if there are any disabilities or support needs which should be taken into account. This should be recorded on the resident record so that the service can be delivered appropriately, aligned to the needs of the household. Section 7.7.(Repairs)
3. The landlord will consider whether its decision would have an unfair or disproportionate impact on the resident compared with another resident who did not have a protected characteristic. Section 8.3 (Protected Characteristics)
The landlord has a two stage complaints procedure. The complaints policy states that the landlord will aim to issue its stage one (Complaint) response within 10 working days and its stage two (Peer Review) within 20 working days. At both stages the policies state that if the landlord is unable to resolve the complaint within these timescales it will keep the resident informed and provide a timescale of approximately how long it will take to provide its response.
The landlord’s compensation policy states that when compensation is offered the landlord will consider the following:
1. Whether the problem occurred as a result of a direct failure by the landlord or its Contractors. (The contractor would take ownership of their own).
2. The length of time it took the landlord to resolve the problem.
3. Whether those affected had particular needs that were made worse by the situation.
4. Difficulties the resident experienced when making their complaint.
The Ombudsman’s remedies guidance suggests awards of:
1. £50 to £250 for cases where the Ombudsman has found service failure which had an impact on the resident but was of short duration and may not have significantly affected the overall outcome for the resident.
2. £250 to £700 for cases where the Ombudsman has found considerable service failure or maladministration, but where there may be no permanent impact on the resident.

The landlord’s handling of repairs to the resident’s specialist disabled toilet.

The landlord recognised its responsibility to repair the resident’s toilet, raising a repair to the r specialist toilet in response to the resident’s report of a leak on 17 August 2020.
As the landlord was aware of the resident’s disability, and that the leak related to her specialist disabled toilet, the landlord was expected in accordance with Section 7 of the landlord’s vulnerable resident’s policy, to consider what additional support, consideration or variation in usual service provision might be appropriate for the resident given her known vulnerability. There is no evidence that the landlord did either, logging the repair as routine.
It is acknowledged that it was not until the plumber attended, nine calendar days later, on 28 August 2020, that it became clear that the works were more extensive, by which the time the plumber had disconnected the specialist toilet. There is no evidence that the landlord took any steps at the time of the report, or during the nine days between when the report was made and its attendance, to establish whether the resident was able to use the second toilet prior to disconnecting her disabled toilet. This was a significant failing by the landlord. Prior to removing the disabled toilet, the landlord did not establish whether the resident had alternative toilet facilities that she was able to use .
On the same day as the toilet was disconnected the resident called the landlord to ask when the plumber would return to complete the repair and to advise that she had to have a friend help her use the second toilet in property, which they did ‘‘with great difficultly’’, and that the disconnected toilet had been placed against the shower seat in her wet room so she could not use her shower either.
The contact centre advisor acted appropriately, asking that urgent assistance be arranged. Having received the resident’s reports the landlord was expected to consider what steps it could take to assist the resident to access the second toilet. By leaving the disconnected toilet standing against the shower seat, the landlord also rendered the resident’s shower unusable, further limiting her ability to maintain her personal hygiene. There is no evidence of the landlord taking any action at this time.
It was not until the resident’s councillor contacted the landlord a further six days later, on 4 September 2020, that the landlord took any action. In this case the landlord acted swiftly to move the disconnected toilet away from the shower seat and to install grab rails to the second toilet, however, the resident was unable to use these as she was not able to pull herself up. In addition no works were carried out to either the pipe work or to reinstate the toilet at that time.
Following its unsuccessful attempt to resolve the resident’s access to the second toilet by the installation of grab rails, the landlord then failed to make any further attempts to assist or support the resident. There is evidence of the landlord being aware of the resident’s contact with her OT (details of this contact has not been seen by this service). However, as the landlord acknowledged in its final response it did not followed up with the resident after she liaised with her OT, to ensure the toilet was made usable. .
In its final response the landlord said that it had regularly communicated with the resident throughout the repair and offered apologies on numerous occasions for any inconvenience caused. There are call notes of the resident calling the landlord and it responding. However, there is no evidence to support the landlord taking any proactive steps to contact the resident. The landlord has said that its call recordings have been deleted in accordance with its data retention policy.
A further 11 calendar days later, on 15 September 2020, a plumber attended to carry out the repair to the piping. On 16 September 2020 the resident called the landlord as she was concerned that as the boxing had not been completed, she may not be able to have her specialist toilet reinstated on 18 September 2020. The contact centre advised the landlord’s planning team and asked that they call the tenant to advise. There is no evidence of the planning team calling the resident. The resident then called again on 17 September 2020 and was advised that ‘‘the matter had been referred to planners and that (the landlord) would be in touch’’. There is no evidence of the landlord doing so.
The boxing in was completed on 18 September 2020 and the resident’s specialist disabled toilet was reinstated the same day.
In total the specialist disabled toilet was disconnected for a period of 21 calendar days (28 August to 18 September 2020) during which time the resident did not have access to a usable toilet and, as the councillor explained in his escalation request, had to use a commode to go to the toilet, which she would have struggled to do had she not had a friend to help her.
It is understandable, given the extent of the repairs and the requirement for specialist teams, equipment, and pest treatments, that the works could not be completed within the timeframe of an emergency repair. However, disconnecting the resident’s specialist toilet without first ensuring that she was able to use the second toilet in her property was a significant failure by the landlord.
In its final response the landlord acknowledged the impact and inconvenience to the resident of not being able to use the second toilet, for which it offered the resident £200, and that it had failed to follow up to ensure that the resident’s second toilet was usable after the toilet had been disconnected, for which it offered a further £100. In total the landlord offered the resident £300 compensation in relation to the usability of her second toilet. However, despite being given the opportunity to do so, and the landlord itself having continued to maintain that this was not an emergency repair, the landlord failed to acknowledge that it should have ensured that the second toilet in the property provided the resident with a reasonable and usable alternative before disconnecting her specialist toilet.
Having considered the evidence, given the level of failure by the landlord and its failure to acknowledge that it did not ensure that she had an alternative toilet facility , I am not satisfied that the landlord’s offer of a total of £300 provided the resident with reasonable redress. I have therefore ordered that the landlord apologise to the resident for its failure to ensure that she was able to use the second toilet in her property before disconnecting her specialist toilet and to pay her an additional £300.
Not only did the landlord not ensure that the resident had a useable toilet but she was also left unable access her shower for a period of 6 days between 28 August and 4 September 2020. In its final response the landlord appropriately acknowledged and apologised to the resident for the inconvenience of having the toilet in front of her shower seat for a period of days 6 days, The landlord also offered the resident £100 compensation. This was an appropriate and proportionate response by the landlord for this failure, in line with the Ombudsman’s remedies guidance.

Complaint handling

The resident logged a formal complaint with the landlord on 7 September 2020.
The landlord complaints procedure states that the landlord will aim to respond to a stage one complaint within 10 working days. The landlord failed to comply with the timescales laid down in its complaints procedure, not providing its response until 9 October 2020, 22 working days later. There is no evidence of the landlord advising the resident that is was unable to resolve the complaint within the 10 working day timescale.
On 11 December 2020, the resident’s councillor contacted the landlord to escalate the complaint on the resident’s behalf.
The landlord complaints procedure states that the landlord will aim to respond to a stage two (Peer Review) within 20 working days. The landlord again failed to comply with the timescales laid down in its complaints procedure, not providing a response until, 19 February 2021, 50 working days later.
In its final response, the landlord apologised for the delay in it issuing its final response and offered the resident £50 compensation for that failure. This was a reasonable and proportionate response. However, the landlord failed to identify that there had also been a delay in it providing its stage one response. A further order of £50 has therefore been made in respect of this additional failure.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its handling of repairs to the resident’s specialist disabled toilet.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Reasons

Whilst the landlord apologised and offered the resident compensation for the inconvenience to the resident of not being able to use the second toilet and its failure to follow up to ensure that the resident’s second toilet was usable after the toilet had been disconnected. The compensation offered did not reflect the significance of the failings and the inconvenience caused to the resident. The landlord failed to take steps to ensure the resident had a useable toilet before it disconnected the specialist toilet, it delayed in progressing the repair to the specialist toilet by refusing to arrange for the removal of the rat, it left the resident without access to her shower for 6 days and failed to provide an appropriate level of support to the resident given her know disabilities.
The landlord failed to issue either its stage one or stage two response in accordance with its complaints procedure. The landlord acknowledged the delay in issuing its stage two response, for which it offered the resident £50, but did not acknowledge that it had also failed to issue its stage one response within the required timescales.

Orders and recommendations

That within 28 days of the date of this determination, the landlord is to:
1. Pay the resident the £450 offered in its final response (if it has not done so already).
2. Apologise and pay the resident an additional £300 for its failure to ensure that she had access to the second toilet in her property before disconnecting her specialist disabled toilet.
3. Apologise and pay the resident an additional £50 for its failure to provide its stage one complaint response within the timescales specified in its complaints process.
That within six weeks of the date of this determination, the landlord is to:
1. Review the lessons learnt from this case, in particular how its repairs process takes into account the requirements of its vulnerable resident’s policy and what staff training might be necessary to ensure that this policy is embedded throughout its repairs process.
2. The landlord is then to write to the resident to set out what measures it has put in place to ensure that there are improvements to how it manages reports of repairs for vulnerable resident going forward.