Aster Group Limited (201916183)

REPORT

COMPLAINT 201916183

Aster Group Limited

14 January 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 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 complaints are about:
1. How the landlord responded to concerns raised about the attitude of its staff.
2. The landlord’s decision not to treat the resident’s request to astro turf the rear garden as an aid and adaptation under its policy; and the landlord’s decision not to reimburse the resident the costs of having the work done privately.
3. Rent arrears letters the resident received.
4. The landlord’s decision not to make adjustments to the rent arrears correspondence it issues.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s decision not to make adjustments to the rent arrears correspondence falls outside of the Ombudsman’s jurisdiction.
In 2017, the resident entered into discussion with the landlord about the layout and wording of the arrears letters. The landlord had advised that it would not consider changing the structure or content of the letters. The resident has raised concerns about this with this Service and says that by refusing to change the letters, the landlord has not acted in line with the Equalities Act 2010.
Whilst the resident’s concerns about this have been noted, the Ombudsman has not been provided with any evidence which shows that this complaint exhausted the landlord’s complaints procedure.
Paragraph 39(a) of the Housing Ombudsman Scheme states that “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.” It follows that the Ombudsman cannot consider the resident’s concerns about the landlord’s decision as part of this complaint.

Background and summary of events

Background

The resident is a tenant of the landlord’s property, and moved to the property by way of mutual exchange. The resident has a mental health impairment which they have explained affects their ability to carry out normal day-to-day activities. The resident has advised that they have been prescribed medication which can have the effect of causing seizures, which present hazards such as trips or falls.

The Landlord’s Aids and Adaptations policy

The landlord’s policy regarding aids and adaptations states that the purpose of an adaptation is to modify the home environment in order to restore or enable independent living, privacy, confidence and dignity for individuals and their families. It states that its focus as a landlord is therefore to identify and implement an individualised solution to enable a person living with a disabling home environment to use their home more effectively rather than the physical adaptation itself.

The tenancy agreement

The tenancy agreement sets out the responsibilities and duties of both the resident and landlord. In relation to the payment of rent, it provides –

“1.10 If the period of the tenancy is weekly, the payment of the Total Rent is due in advance on Monday of each week. If it is monthly, it is due in advance on the first day of each month. If we ask you to do so, you must authorize us to receive directly any payment (such as Housing Benefit) to which you are entitled to assist you in paying the rent. Even if you receive assistance with paying the rent, it is still your responsibility to pay”.

Summary of events

The resident contacted the landlord in January 2019 in relation to a request for astro turf to be laid in the rear garden. The request had been made the previous year as the resident was concerned that the garden as uneven and dangerous, and posed a hazard given their health condition and associated medication. The landlord had declined to consider the request under its Aids and Adaptations policy (the policy) on the basis that such works would not ordinarily meet the criteria. The resident therefore contacted the landlord in January 2019 to discuss the matter further.
The resident says that when they contacted the landlord, they asked to speak with the disability department; however, they were informed that such a department did not exist. The resident says that they explained what the call was in relation to, and was eventually put through to somebody – although they were not made aware of who the member of staff was given that their post was not declared by the switchboard operator.
The call was terminated soon after and the resident subsequently complained to the landlord about the events that had transpired.
The landlord issued a response to the complaint on 4 February 2019. The letter addressed a number of concerns that had been raised including staff conduct and the request for astro turf. In its letter, the landlord said as follows –

Attitude of staff

It had discussed the resident’s concerns with the member of staff concerned. She did not have any recollection of speaking with the resident before, nor did she have any knowledge of their queries. As a result, she asked the resident how she could help when the call was put through to her.
The Neighbourhood Team wa s focused on resolving customer queries, and that was what the member of staff had tried to do. The call was taken correctly, and a service was offered during the limited conversation which was had.
It was unable to find any failure in its offer of customer service.

Request to astro turf the garden under the Aids and Adaptations Grant

It had thoroughly investigated the resident’s enquiry; however, the advice the resident had been provided with was correct in that such works would not normally meet the eligibility criteria under the Aid and Adaptations policy.
It added that any request for assistance through either scheme must be made through an Occupational Therapist who would assess the need and make recommendations. No such application had been received; however, it had supported the resident in giving them consent to carry out the works themselves.
Further, when the resident mutually exchanged to the property they took responsibility for any repair and maintenance of the existing artificial grass in the rear garden.

The resident responded on 19 February to express dissatisfaction with the response. The resident said that the attitude of staff had not been properly addressed with the response and that they wanted the following:
1. A fuller investigation of the conversation that had taken place – together with an apology and good will gesture.
2. A professionally trained senior advisor for repairs, or for the full agreement and responsibility of the neighbourhood officer to log and arrange all repairs. In addition to, compensation for all missed appointments and extensive calls.
3. Assistance with the rear garden, either “in labour or financial imbursement”.
4. Compensation for the undue stress of false rent accounting, and the impact on their credit score.
Further correspondence was exchanged in relation to the rent account complaint. The resident confirmed to the landlord that they were of the opinion that they had been paying their rent correctly – on a monthly basis – and that the landlord was calculating incorrectly.
The landlord issued a further complaint response on 7 March 2019. It said that it had carried out a full investigation of the complaint, but reviewed this in light of the comments which had been made by the resident. It said:
1. It discussed communication with several Contact Centre team members who had dealt with the resident’s repair requests in recent months. Having done so, it had not found any evidence of poor customer service from them. It found that they had often spent significant time explaining the landlord and tenants responsibilities, and giving their best advice in accordance with their training and experience.
2. It found no failing in the conduct by a particular member of staff and there was nothing further to investigate.
3. It would not be allocating a dedicated officer in the Contact Centre for repairs. The team handled thousands of calls a month, and it could not guarantee one person’s availability for them. The resident’s Neighbourhood Officer could not log and arrange repairs as this was the responsibility of the Contact Centre.
4. It had no responsibility for the resident’s garden and there were no grounds for it to pay any compensation.
5. The resident’s correspondence in February was the first time that reference had been included to the rent account and credit rating. It had made enquiries with the Customer Accounts team and it confirmed that the rent account had fallen into arrears. It was assumed that this was what the resident had been referring to.
6. Staff within the accounts team had informed the resident that they were unable to make direct enquiries with the Department for Work and Pensions (DWP) about Universal Credit or Alternative Payment Arrangements, and that the resident had to instigate this themselves through their portal. However, it urged the resident to take immediate action to try to correct whatever had gone wrong.
In response, the resident raised concerns that the complaint had fallen on “deaf ears”. They requested a meeting in person so that the outstanding issues could be clarified with a view to finding a solution.
A meeting took place on 14 June, and the landlord wrote to the resident on 28 June to confirm the discussion. In the letter, the landlord said:

Communication with a named member of staff

It was with regret and disappointment that the exchange was unsatisfactory. However, this was true from both the resident’s and the landlord’s perspectives.
It did not record telephone calls, so there was nothing it could refer to. However, the matter was discussed with the member of staff again.
During the meeting, the resident explained that they had requested to be put through to the landlord’s equality/disability worker, but now understood that such a post does not exist – and why the call handler face difficulties when trying to assist.
The member of staff did put the resident through to the neighbourhood team – which can usually help with generic queries. However, this was not what the resident had wanted, and therefore there “must have been inherent frustration from the outset”.
The situation was reached whereby the member of staff did not feel she was making any progress as the resident would not explain the query, and she wanted to help. The resident found the call handler’s responses to be rude, and expressed this opinion.
The call handler gave warning that she would end the call and followed through when the situation continued. She did not agree that she withheld her job title as there would be no reason not to provide an answer to the question.
These findings did not change the previous decision that the service the resident received was acceptable.

Rent account handling

The current way in which the resident’s Universal Credit was paid into their account meant that the rent account would always show in arrears. Its Customer Account Team would follow its procedures to manage this. However, unlike Housing Benefit it was unable to contact DWP directly to discuss the claim. Enquiries had been made regarding the resident’s account; however, it had been informed that there was no error or further back payment due.
It appreciated that the serving of the notice caused anxiety; however, it did follow the Account Team’s attempts to find answers.
It hoped that following the meeting, the resident appreciated that it could provide specialized support and hoped that the resident would make use of this service.

Compensation for above issues

The resident had advised that they considered £500 to be appropriate compensation for distress caused during the telephone conversation in question. As the landlord found no service failure, no compensation was payable.

Reasonable adjustment of artificial lawn due to disability

The mutual exchange disclaimer also made it clear that the resident was accepting and responsible for the artificial grass. The resident had now paid privately for it to be replaced.

The resident expressed further concern with the response. They said that it left out important elements and that the landlord had “manipulated” the complaint to match policy only – thus “overlooking a disabled client”.
The landlord informed the resident that it would consider whether it would be necessary for the complaint to be reviewed by one of the Regional or Operations Directors. It subsequently decided on 15 July that no further review would take place as there was no new evidence to suggest that the complaint should have been dealt with differently.
In August, the resident confirmed that they wished for the complaint to be referred to a residents panel. The panel subsequently convened on 8 October. The Chair of the Panel later wrote to the resident and confirmed:

Communications in January 2019

As there was no recording of the conversation, there was no direct evidence of the conversation that took place.
The panel did not feel that there was any evidence to suggest that the member of staff conducted herself inappropriately. It was unable to support the resident’s request for an apology from the member of staff.
The panel had made a recommendation to the landlord regarding the recording of all calls and Mental Health appreciation call training.

Adaptation support refused for artificial lawn in the back garden

The resident’s request for assistance through the disabilities grant would have required a recommendation through an Occupational Therapist. However, as the resident had signed the Mutual Exchange Disclaimer for the lawn, the panel agreed that there was no service failure. It was noted that the resident had paid privately for the lawn to be replaced.
During the meeting, the resident advised that the landlord had not been cutting the grass at the front of the property. The panel investigated this and established that the front lawn within the property boundary was the resident’s responsibility to maintain and the landlord would attend the communal ground only.
The panel felt unable to uphold the resident’s request for reimbursement of monies spent replacing the artificial grass as this was not classed as an adaptation support for the resident’s disabilities.

Rent arrears letters

The resident had raised concerns about how receiving these letters had made him feel. It acknowledged that the resident felt that the landlord should have provided more support to sort out the late payment issues.
The panel clarified with the landlord representative that due to the implementation of Universal Credit, it was no longer able to go direct to the DWP to discuss late payment on the resident’s behalf. The responsibility now lay with the resident.
The panel had been informed that the resident had previously been offered assistance in relation to this – and such help was now being provided by the Financial Wellbeing Team Leader.
The panel understood that the resident considered this part of the complaint as having been dealt with.

The panel concluded that having listened to both parties, it was unable to uphold the complaint. The resident remained dissatisfied with the outcome, and referred the matter to the Ombudsman for investigation.

Assessment and findings

The attitude of staff

In the absence of a call recording, it was appropriate for the landlord to speak with the member of staff concerned and obtain her comments. The conversation was discussed further when the resident met with landlord staff to discuss his complaint. The landlord acknowledged that the call had been difficult for both the resident and the member of staff, together with the reasons why. As a result of its investigation, the landlord identified why the call had not been satisfactory for either party and why it had not been a successful interaction. This was appropriate.
It is acknowledged that the resident was deeply unhappy with this particular interaction. In light of the concerns which were raised, the landlord tried to ascertain what had happened during the conversation. In doing so, it found no evidence of inappropriate behaviour by the member of staff. The panel concluded that there were no grounds for the member of staff to apologise to the resident; however, it did recommend that the landlord carry out further training for its staff, particularly with regards to mental health.
The Ombudsman has not been provided with any evidence which demonstrates that staff had behaved inappropriately or in a manner that was deliberately unhelpful. On the basis of the evidence available, the actions taken by the landlord in response to the resident’s concerns were proportionate. In addition, the panel’s recommendation that further training in call handling, particularly in relation to mental health, should help to ensure that similar incidents do not reoccur in the future.

Astro turf

The Ombudsman cannot make a finding of discrimination, under the Equalities Act 2010 or otherwise. This is a legal matter that would have to be determined by a court. However, the Ombudsman has assessed how the landlord responded to the resident’s request and whether the response was in line with its policy and procedure relating to Aids and Adaptations.
The landlord’s procedure for considering aids and adaptations provides that a request or recommendations for adaptations will be received either via the local authority occupational therapists or the local authority’s environmental and housing services team. Once a request has been received, one of the landlord’s managers within the relevant area will consider the request and proceed when particular criteria have been met.
From the evidence that is available, it appears that the resident contacted the landlord directly with their request for the garden to be astro turfed. Evidence provided to the Ombudsman shows that during a telephone conversation, landlord staff:
1. explained that astro turfing was not the kind of work that would ordinarily be considered a ‘reasonable adaptation’. Examples of the type of adaptations – including grab rails and ramps – were provided.
2. for an adaptation to be made, the resident would have to undergo an occupational therapy assessment first with a recommendation for such work to be undertaken.
Given the landlord’s procedure for aids and adaptations, its actions were appropriate. In the circumstances, it may have been helpful for the landlord to arrange an occupational therapy assessment for the resident – or to provide advice about to how to request one – so that any alternative recommendations could be considered. However, given that the enquiry was specifically in relation to astro turf, this was a shortcoming in the service provided as opposed to a failing. In addition, it is also noted that the resident had signed a disclaimer when they moved to the property, accepting responsibility for the garden and works relating to it.
With regards to the resident’s request to be reimbursed, it was not inappropriate for the landlord to decline this. The landlord had previously advised that the request did not meet its criteria and that its procedure was to consider requests or recommendations received via an occupational therapist. There is no evidence that the landlord had suggested that it may cover the costs – partially or otherwise – if the resident had the works carried out privately. It follows that there was no obligation on the landlord to agree to reimburse the resident.

Rent arrears letters

Where a tenant fails to pay rent – or there are issues with the benefit that a tenant may be in receipt of – and this gives rise to arrears, landlords are entitled to start possession proceedings by virtue of the Landlord and Tenant Act 1985. As part of this process, the landlord must write to the tenant, advising of the arrears and that it has the right to seek possession of the property. In addition, the landlord should invite the tenant to get in touch to discuss repayment options if there are circumstances affecting their ability to pay rent in full.
The resident raised concerns that there were errors in the landlord’s accounting which resulted in them receiving letters regarding arrears. Following discussion between the resident and the landlord it was established that the discrepancies on the rent account were as a result of how their Universal Credit payments were made. The landlord appropriately advised that it was no longer able to go directly to the DWP to discuss late payment on the resident’s behalf. It explained that this responsibility now lay with the resident; however, it could offer assistance in relation to this.
It is acknowledged that the letters regarding the arrears and the Notice of Intention to Seek Possession caused the resident distress. However, the landlord had an obligation to ensure that this correspondence was sent, together with an explanation about the Pre Court Protocol. It follows that the Ombudsman cannot find that there was a failing by the landlord in issuing the relevant letters. However, it is noted that the resident is receiving help from the landlord’s Financial Wellbeing Team Leader. This should help to ensure that the resident’s rent account is monitored and that any issues with rent payments can be pre-empted so that they do not receive similar correspondence in the future.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the following complaints:
1. How the landlord responded to concerns raised about the attitude of its staff.
2. The landlord’s decision not to treat the resident’s request to astro turf the rear garden as an aid and adaptation under its policy; and the landlord’s decision not to reimburse the resident the costs of having the work done privately.
3. Rent arrears letters the resident received.

Reasons

The landlord appropriately and proportionately investigated the resident’s concerns about the particular phone call in question. In the absence of a call recording, it established that the call had been unsuccessful for both the resident and the call handler. However, there was no evidence to demonstrate a failing by the member of staff and as a result no further action was taken.
In response to the resident’s request for astro turf, the landlord appropriately explained why this request could not be considered under its Aids and Adaptations policy. The landlord explained that the resident had agreed to take responsibility for the maintenance of the garden when they moved to the property; and also provided guidance about what steps the resident could take to try to obtain council funding. The landlord had not intimated at any time that it would reimburse the resident – in full or otherwise – if they chose to have the work done privately. Therefore, there was no obligation on the landlord to reimburse the resident once the works were complete.
The landlord was obliged to send the resident letters regarding their rent account given that it had fallen into arrears. It is acknowledged that the letters caused the resident distress; however, it was important that the arrears were brought to the resident’s attention. Further, as a result, the landlord was able to offer assistance in the managing of the rent account – which should help to prevent similar correspondence being issued in the future.

Recommendations

Within six weeks of the date of this determination, the landlord should write to the resident and advise what steps were taken in response to the panel’s recommendation regarding further telephone training for staff.