Clarion Housing Association Limited (202002136)

REPORT

COMPLAINT 202002136

Clarion Housing Association Limited

17 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 resident, via his representative, complains about the landlord’s handling of:
1. Matters relating to an asbestos incident in January 2018.
2. A formal complaint made by the representative in June 2018.
3. The Delegated Authority (DA) process.
4. An offer of compensation in 2018
5. Compensation paid in 2020.
6. Requests for information.
7. The handling of the 2020 formal complaint.
The resident also complains that the landlord has discriminated against him by failing to accommodate his disabilities.

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.
Paragraph 39(a) of the Scheme states that the Ombudsman will not investigate complaints which, in its opinion, are made prior to having exhausted a member’s complaints procedure.
A specific complaint about the landlord discriminating against the resident by failing to accommodate his disabilities did not form part of the formal complaint put to and considered by the landlord in this case, and therefore falls outside of this Service’s jurisdiction.
Even had this specific matter been addressed as part of the formal complaint, this Service is unable to make a legal finding of discrimination. This would be a matter for the courts to determine, where appropriate evidence could be interrogated and the relevant legislation applied to the circumstances. If the resident believes he has been unlawfully discriminated against he may wish to seek independent legal advice or contact the Equality and Human Rights Commission for further information on his options in the circumstances.
Having said this, the investigation will consider the reasonableness of the actions taken by the landlord in light of the resident’s known vulnerabilities, and whether or not these vulnerabilities were appropriately taken into account.
The representative has also raised concerns about how the asbestos incident may have impacted the health of the resident. This Service is unable to determine matters of causation and liability in terms of how a landlord’s actions might have impacted upon a resident’s health and well-being. Such issues would be better dealt with as a personal injury claim through the courts, or via an insurance claim, where appropriate professional medical evidence can be properly reviewed.
This is in accordance with paragraph 39(i) of the Scheme which states that the Ombudsman will not consider complaints which concern matters where this Service considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, or other tribunal or procedure.

Background

The landlord’s complaint policy as was in place at the time of the matters raised states that initial queries will be resolved by one of its teams where possible before a formal complaint is recorded. Once a complaint had been accepted, it had a two-stage procedure:
1. Stage one – a formal complaint recorded and investigated.
2. Stage two – At the conclusion of the stage one process, a customer may request a review of their case. They need to be clear on what they wish to be considered as their desired outcome and what specifically they are not accepting.
The landlord’s compensation policy allows for discretionary compensation payments to be made where any inconvenience has been caused by its actions or failure to act. Examples include:
1. The time taken to resolve the complaint
2. Any inconvenience suffered or a degree of disruption to the household
3. Consideration of the household vulnerabilities including age and disability
4. Recognition of any failure to follow process
The policy states ‘You should work toward £100 each point above for every year the issue has taken us to resolve.’ It says that when compensation is offered the landlord will consider various circumstances, including:
1. Whether the problem occurred as a result of a direct failure.
2. The length of time it took 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.
5. Failure of staff to follow policies and procedure.
6. Household vulnerabilities.
The landlord’s Delegated Authority (DA) procedure as was in place at the time of the issues raised sets out the following: When it received a request to add a DA, it must send a DA form to the customer and the process will be added to the relevant team’s queue. If the form isn’t returned within 10 days a case closure letter will be sent and the process closed. Once the completed form is returned, the team will pick the process from the queue and ensure the form has been completed fully. Once it was satisfied the form was legitimate and fully and accurately completed, the team must update the customer’s record to reflect the DA.
The landlord’s vulnerable resident’s policy as was in place at the time of the matters raised sets out the following: Where a vulnerable resident has been identified and referred to the sustainment services, this will be recorded on the customer record so that staff can see if there are particular communication or access needs and whether there is anyone with DA to speak to the landlord on the residents’ behalf.
Compliance with the policy would be monitored by periodic reviews of case records, and any resident who receives a support service, such as tenancy sustainment, would have their cases managed and reviewed regularly.

Summary of events

In January 2018 the resident and his father disturbed asbestos while carrying out decoration works to the bedroom door at the property, and the resident was decanted while the property was assessed, decontaminated, and his possessions disposed of. The resident made an insurance claim for lost possessions in February 2018. The flat was deemed safe and habitable that same month, although the resident did not move back in due to it being empty of his possessions and the bedroom door not having been replaced. He received an insurance payment of £8,300.00 in early May 2018. The resident’s representative, who had DA, was in regular contact with the landlord during this period about the matter.
On 17 June 2018 the representative wrote to the landlord raising some concerns. She explained that the incident had been distressing and upsetting for the resident, who suffered with anxiety, and there were concerns about the impact the asbestos exposure had on his health. The representative said the initial response had been haphazard and it would have been helpful to have been told from the outset that staff members were working on different aspects of the matter and no one was coordinating overall. She raised concerns about calls and emails not being responded to and pointed out that the resident was still waiting for the bedroom door to be replaced. Around the same time the resident made his own complaint to the landlord about the matter, asking for compensation.
The bedroom door was replaced in late July/early August 2018 and the resident returned to the property soon after. The landlord provided him with a complaint response on 29 August 2018, offering compensation for distress and inconvenience of £280 and an additional £50 for the time it took to replace the bedroom door. The landlord noted that the resident had said he would not accept this.
A decant payment of £1245 for the period up to 20 May 2018 was issued on 26 September 2018.
The landlord pursued eviction proceedings in early 2019 due to rent arrears. The resident was referred to tenancy sustainment services in March 2019 for support, but later declined this. The resident attended a court hearing on 20 June 2019 and undertook to pay the rent plus an additional £20 per week. He also subsequently paid a large sum towards the arrears on 8 July 2019. However, as the resident breached the court order, the landlord took further action against the tenancy. The resident made an application to stay the eviction and the court hearing for this took place on 15 October 2019.
On 3 December 2019 the representative requested the resident’s rent statements form the landlord via email. That same month a completed DA form was logged by the landlord.
On 27 January 2020 the representative sent a fifteen-page letter of complaint to the landlord. On the first page she detailed 10 heads of complaint as follows:
1. The landlord’s response following the exposure to asbestos in January 2018.
2. A general lack of responsiveness, co-ordination and care following the incident.
3. The resident not being advised of the possibility of asbestos in the property.
4. Medical advice and follow-up.
5. A failure to recognise the representative as the DA or keep her informed since July 2018, resulting in serious and harmful consequences to the resident including possible eviction.
6. The representative’s 17 June 2018 complaint not being addressed.
7. The offer of £330 compensation made to the resident without the representative’s knowledge.
8. Circumstances relating to the decision to evict the resident in 2019.
9. An ‘inaccurate and misleading response’ to a Councillor’s enquiry.
10. Misinformation, lack of responsiveness and lack of co-ordination.
The next two pages of the letter then set out the resident’s medical history and the challenges he faced, the history of the asbestos incident, and the negative impact this had on the resident. The remaining pages of the letter provided more detailed commentary set out under each of the ten heads of complaint, and asked a number of questions on each, with around 90 specific questions in all. The representative said that she required a response to ‘each and every question.’
The landlord provided two responses dated 27 May 2020. The first related to the complaints and questions about the asbestos incident and was from the service area, rather than the complaint team. It dealt with each question the representative had asked with no failings identified.
The second letter was a formal complaint response,18 pages long and answered each of the representative’s questions in turn, attaching a number of appendices providing documentation that the representative had asked for. The landlord recognised some failings and actions required on its part, as follows:
1. It was reviewing its policy in relation to vulnerable customers, which would include how it could best record the needs of vulnerable residents and who within the organisation should have the ability to view this information.
2. It would be conducting refresher training for staff on this issue.
3. It recognised a failing to respond to the representative’s 17 June 2018 letter, and her email dated 3 December 2019, explaining how these failings had occurred. It had provided feedback to the managers of the staff members concerned who would take the appropriate action.
4. It acknowledged that there was a delay re-instating the bedroom door, although did not find that this made the property uninhabitable.
The letter concluded by awarding compensation in light of the failings identified, as follows:
1. Time taken to resolve the complaint– £200
2. Consideration of household vulnerabilities – £200
3. Recognition of failure to follow process – £200
4. Service failure (delay indexing email dated 3 December 2019) – £25
In addition, it was reoffering the compensation previously awarded in August 2018 (£330), making a total of £955 compensation, which would be paid directly to the rent account due to arrears.
On 22 June 2020 the representative wrote to the landlord saying that the landlord was either ‘unwilling or unable’ to provide answers to many of her comments and questions, and so she was providing it with a final opportunity to clearly and concisely address her full complaint. She said ‘Please do so against the context given in the first three pages of my complaint and with specific reference to the information provided under each issue. I have evidence for everything I have stated.’ The representative also asked a further 25 questions.
The landlord contacted the representative on 24 June 2020, providing information on its complaint process, how the representative’s complaint was dealt with, and agreed an extension to the deadline for requesting escalation until 24 July 2020 (as the representative had requested).
On 18 July 2020 the representative contacted the Ombudsman, expressing concerns about the landlord’s approach to her complaint. She provided the Ombudsman with an eight-page letter dated 23 July 2020 which detailed concerns about the approach taken to the complaint, a failure to address her concerns, and the impact the issues had on the resident. She said ‘Despite asking for a full and thorough response to each of the issues raised and an answer to each of my questions, Clarion have simply done the latter in isolation. They have consistently done so without reference to the first three pages of my complaint or the detailed background information and examples provided for each issue.’ The letter provided further commentary on the issues and the representative’s concerns, and on pages four and five set out her desired outcomes, for example the landlord to be fair, put things right and learn from outcomes, take all issues to stage two of the complaint process, a full apology and compensation.
The final three pages detailed a number of matters that the representative felt were outstanding, such as residents not being made aware of asbestos in their properties, a lack of coordinated response to the incident, delay in replacing the bedroom door, and failure to inform that the DA was revoked.
After a misunderstanding between the representative and this Service regarding the escalation request, on 28 September 2020 the Ombudsman wrote to the landlord providing a copy of the 23 July 2020 letter, and asked that it escalate the matter and provide a final response. The landlord then wrote to the representative confirming that it had received the escalation request.
On 5 October 2020 the representative emailed the landlord with a letter dated 23 July 2020, asking it to forward the letter to the person conducting the review as it contained additional information. The letter said ‘I formally request that in addition the following information is considered’ and then set out the following:
1. The landlord’s decision to deal with the complaint as part enquiry.
2. Compensation payment being made when the amount had been declined.
3. Customer service failures.
The landlord provided a final review response dated 12 November 2020. It provided responses under each of the heads of complaint and came to the following conclusions:
1. Most of the representative’s questions were appropriately answered in the first instance.
2. The review had highlighted a need for some working practices to be scrutinised ‘…as it is clear that we fell short of expectations in areas.’
3. In light of the concerns raised in the complaint, the landlord’s policy and procedures regarding asbestos management and health and safety would be reviewed.
4. The leaflet, ‘leave it to the experts’ (regarding what action a tenant should take before carrying out any works to their property), would be revised to ensure the wording was clear.
5. It would be made a mandatory requirement for residents to confirm their receipt and understanding of the leaflet as part of the tenancy signing process.
6. It had recently reviewed its vulnerable residents policy to ensure residents got the best support necessary.
7. It was looking to improve its systems by enabling further information to be displayed on an account, for example, the specific needs of a particular resident.
8. It recognised poor communication on its part, for example, the DA form being sent to the property despite knowing the resident was decanted.
9. There had been a delay in replacing the bedroom door, and since the complaints were raised the landlord had made improvements to its system and ways of working, and it would continue to make improvements with contractors.
10. There was a failure in its handling of the complaints in 2018 which, if managed better, could have potentially resulted in a resolution at the time.
11. The landlord said ‘I apologise again for this experience caused by our inability to address your concerns in the right way.’
12. It acknowledged that the complaint responses were outside of its target times as set out in its complaint process.
It awarded a total of £1730.00 in compensation for the failures identified (less the £995 already paid) and £1110 payment for the decant, as follows:
1. Time taken to resolve complaint – £250
2. Consideration of household vulnerabilities – £700
3. Recognition of failure to follow process – £250
4. Inconvenience and anxiety regarding asbestos – £280
5. Delay to re-instate bedroom door – £150
6. Service failure (delay indexing email dated 3 December 2019) – £100
7. Extended decant payment – £1110
The letter explained that any concerns about the impact on the resident’s health would need to be pursued as a personal injury claim and gave details of how to go about this.
The representative sent a response setting out her outstanding concerns on 22 December 2020. In relation to the asbestos incident, she noted that her complaint had raised concerns about the health risk posed going forward, and said ‘Many issues were outstanding after Clarion’s initial response, hence my request for a review. It is disappointing that important issues are still not addressed and it is littered with errors.’ While she welcomed the fact that the matter had now been addressed in its entirely, it took too long after the initial decision to spilt it, and this had taken a great deal of time to resolve and caused unnecessary worry.
The representative said that she was unhappy with the compensation amount, ‘not least because so much of it is extended decant which he is entitled for the period he was unable to live in the flat.’ She was also unhappy that the initial £995 was paid despite her and the resident declining this.
The representative went on to list the areas she felt were outstanding:
1. Customer service issues – she said that there were many examples of customer service failings throughout and the consequences of these which had not been addressed.
2. DA – The representative said the landlord had failed to address one of the main issues which led to so many problems: It initially sent information to the property while the resident was decanted, then did not upload two forms that were posted subsequently as soon as she had become aware of the need.
3. Rent account – The representative said that the response to this contained some errors such as dates and comments made.
4. Asbestos – The representative said that the landlord had not responded to many questions regarding information and timelines, and she was concerned that it considered it reasonable to expect the resident to return to a home without possessions and without warning. She said that the landlord had disposed of the resident’s possessions because of contamination but the landlord was ‘still asserting at this stage that [the resident] disposed of them.’

Assessment and findings

This investigation will not assess every communication that the representative and the resident had with the landlord or the landlord’s response to every concern and question that was put to it via the complaint process. Rather, this assessment looks at matters that remain outstanding following on from the landlord’s response to the complaint, which the representative has confirmed are those described in her 22 December 2020 letter to the landlord, which she has further clarified with this Service.
When investigating a case, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution: be fair – treat people fairly and follow fair processes; put things right, and; learn from outcomes.
Paragraph 36 of the Housing Ombudsman Scheme, states that the person complaining, or on whose behalf a complaint is made (that is, the person in the legal relationship with the landlord) must have been, in the Ombudsman’s opinion, adversely effected by those actions or omissions in respect of their application for, or occupation of, their property. The Ombudsman will only make a finding of service failure or maladministration when it is found that the resident has been adversely affected by the actions or omissions of their landlord. This does not apply to any adverse effect on any representative, who is bringing the complaint on behalf of the resident, but has no legal relationship with the landlord.
In identifying whether there has been maladministration the Ombudsman considers both the events which initially prompted a complaint and the landlord’s response to those events through the operation of its complaint procedure. The extent to which a landlord has recognised and addressed any shortcomings and the appropriateness of any steps taken to offer redress are therefore as relevant as the original failing. The Ombudsman will not make a finding of service failure or maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to offer redress.

Matters relating to asbestos incident in January 2018.

The representative complains that there were numerous customer service failures in relation to this. She notes that the landlord’s 27 May 2020 response letter said that it was happy with the level of communication provided. She feels that this failed to deal with her complaint, which gave numerous examples that were not addressed. In particular she explains that she repeatedly asked the landlord for information about timelines and next steps, but this information was not forthcoming, giving examples of emails she sent on 8 and 12 February 2018.
In response to the representative’s question about emails and phone calls being ignored, and that requests for timelines were not responded to, the landlord’s 27 May 2020 letter simply stated that it was happy with the level of communication between it and the representative and resident. This response was inadequate: The representative had given a number of examples in her complaint, for example detailing calls she said were not returned and emails not replied to, which the landlord did not address or reference. Further, as part of this investigation, the Ombudsman asked the landlord for copies of all communication with the resident and the representative relating to asbestos in the property since the first report of a problem. The information that the landlord provided in response to this contains very little evidence of communications with the resident and representative. Therefore, it is not clear what evidence the landlord relied on when concluding that the levels of communication were reasonable.
In her July 2020 stage two complaint the representative said that her complaints about communication and customer service had not been addressed. The landlord’s November 2020 response did ‘recognise poor communication demonstrated in various forms’ although it did not provide any detail.
The landlord’s response here was unreasonable as it did not adequately address the concerns raised. The lack of response to the complaints made on his behalf would have been frustrating for the resident.
Having said this, review of the evidence that is available (in the main, the emails provided by the representative) shows that while there were some shortcomings in customer service/communication (for example the representative having to chase some responses to emails), in general it was reasonable/did not have an adverse effect on the resident. Therefore, the landlord’s response, while brief, was accurate.
For example, the representative has provided copies of her 8 and 12 February 2018 emails to the landlord, in which she said that the family urgently needed to know next steps and time frames. The representative asked when the resident could return home, and in response on 13 February 2018 the landlord said that the resident could now safely return. Given that this is the only evidence available of the representative or resident asking for timescales/next steps, and the landlord replied in good time, no service failure is found here.
The representative also refers to an email she sent to the landlord’s insurance team on 1 March 2018, asking how long the insurance claim was likely to take. She states, ‘Only then did we find out that he had no idea whatever.’ The insurance team responded the following day saying that it could not say how long the claim would take, and explained that it would be dealt with in two stages, firstly the insurers would decide if there was liability, and would then evaluate the claim value. This response is not indicative of a service failure on the part of the landlord, given that the claim was being dealt with by the insurers and it was not possible for it to know how long this third party would take.
Another example provided by the representative was that due to a misunderstanding between the contractors and the landlord, a list of removed belongings was disposed of, which she states led to ‘…a great deal of my time trying to get more information from Clarion and dealing with the insurance company.’ While this was no doubt frustrating and time consuming for the representative, and the emails that she has provided do show that that the landlord did acknowledge this misunderstanding, there is no indication that this had an adverse effect on the resident, whose insurance claim was assessed and paid.
The representative also complains that the landlord asserted in its November 2020 response to her complaint that the resident had disposed of his belongings himself, when it was the landlord that disposed of the resident’s possessions because of asbestos contamination. She has provided an email from the landlord dated 18 April 2018 as evidence of this.
The landlord’s final response did not say that the resident removed items himself, but that its contractors removed belongings on the request of the resident. While the representative may not view this comment as entirely accurate, the comment has no adverse effect on the resident.
The representative complains that it was unreasonable for the landlord to expect the resident to return to a home without possessions and without warning, especially in light of his vulnerabilities. The Ombudsman understands that the resident did not feel able to return to his property once it was deemed safe to do so in February 2018 as many of his possessions had been disposed of, including furniture, and he was awaiting the outcome of his insurance claim so that these could be replaced before returning. While the representative has complained that the landlord expected the resident to return home straight away, the email dated 13 February 2018 said it was safe to return, but did not state that the resident was expected to do so. In addition, the resident’s decant payment was extended up until May 2018 to allow for the time for the insurance claim to be finalised (and later extended to August 2018 in light of the time taken to replace the bedroom door). There is no indication that the resident was adversely affected by any expectation on the part of the landlord here.
The landlord’s response to the customer service issues could have been more comprehensive, but based on the examples above and the evidence available, there was no service failure that led to an adverse effect on the resident.
However, there was a very long delay in replacing the bedroom door, which the representative had explained was required before the resident was able to move home due to his vulnerabilities. The evidence shows that the representative raised the door repair in February 2018 and had to chase this many times before it was finally done. It is likely that had she not done so, this would have taken even longer than it did.
This was a significant failing on the part of the landlord, who should have replaced the door in a reasonable time frame in any case, but not least because in this case it had been informed of the importance of getting this done before the resident could move back in due his vulnerabilities. The resident was not treated fairly here, and this led to a long delay in him being able to return home.
However, the landlord acknowledged this failing in its November 2020 response and said that it should have replaced the bedroom door much sooner in recognition of the resident’s vulnerabilities. In light of this it extended the decant payment to the date that the door was replaced, and also offered £150 for the delay. £700 was also awarded for ‘Consideration of household vulnerabilities.’ The Ombudsman is satisfied that this acknowledgement and compensation was a reasonable redress and has ‘put things right’ for the resident. The amount was in line with (and in fact in excess of) the amounts set out in the landlord’s own compensation policy.
Finally, the representative is dissatisfied that in response to her question as to whether there had been any concerns or complaints raised about asbestos from others, the landlord said it was unable to discuss this due to its obligations to GDPR. She said ‘I am not asking for specific information about people. Just a yes or no.’
This response from the landlord was not reasonable. It is not clear how GDPR would have prevented the landlord confirming whether any other concerns about asbestos had been raised in the block: It would not have been necessary to provide any personal details of other residents to do so.
However, taken in the wider context of the complaint, this was not so serious a failing as to warrant a finding of maladministration.
It is clear that this incident was very distressing for the resident and his family, and the failings that did occur would have added to this, but overall, the Ombudsman makes a finding of ‘reasonable redress’ here.

A complaint made by the representative in June 2018.

The landlord has accepted that it did not appropriately handle this complaint and explained how the failings occurred: It said that on 11 July 2018 the resident advised the landlord during a telephone call that he wanted to make a claim for compensation due to the emotional distress the asbestos incident had caused him. This was added to the representative’s 17 June 2018 complaint as it was about the same issue. The case was then managed as a compensation claim. The landlord said ‘I’m sorry your letter wasn’t responded to. This isn’t the service we’d expect to provide our customers.’ It said that it had provided feedback to the managers of the staff members concerned who would take the appropriate action.
Not responding to the representative’s complaint was a failing on the part of the landlord, but the landlord appropriately acknowledged this failing, and feedbacking to managers shows that it was taking action to ‘learn from outcomes’, which was appropriate. Further, it offered £200 in compensation for the delay in dealing with the complaint, which was a reasonable amount to ‘put things right’ in the circumstances. While it is the case that had the complaint been correctly dealt with in June 2018 the representative and the resident would have been made aware sooner that there was no DA in place, this did come to light soon after in August 2020.
As such, a finding of ‘reasonable redress’, is made in relation to this matter.

The Delegated Authority process

The representative has explained that this issue is at the heart of the complaint, and she believes that the landlord has failed to address it. She says that when the resident initially requested a DA form (around July 2018) the landlord initially sent this to his address even though it knew he had been decanted, and then failed to upload two forms that she explains she subsequently posted in September 2018 and April 2019. The representative says that the resident had always had DA in place since the start of his tenancy, and is concerned that the lapse in this did not flag with the landlord, despite it being aware of the resident’s vulnerabilities. She states that as a result of the lapse in DA, the resident ‘…ended up in court frightened and alone dealing with eviction proceedings...’
In her 27 January 2020 formal complaint letter to the landlord, the representative explained that the resident recalled that when he submitted his complaint about the asbestos incident in July 2018, he told the landlord that he wanted the representative to be involved but was informed that she did not have DA. He therefore requested a DA form which was not sent until a month later. The representative said that she completed the form straight away, returned it and then sent another in April 2019, neither of which were uploaded.
In its May 2020 stage one response the landlord said that in May 2018 the General Data Protection Regulation 2018 (GDPR) came into force, and in preparation all customers who had a DA in place were contacted and invited to complete and return a new GDPR form. This was a reasonable explanation, and in fact the Ombudsman would consider it good practice to ‘refresh’ consents/representation such as DA regularly.
However, as part of this investigation the landlord was asked for evidence/copies of any correspondence sent to the resident and/or the representative confirming that DAs in place were to be revoked and new forms required. No evidence has been provided that supports the landlord’s position here. The representative has stated that neither she nor the resident were informed of this requirement.
The landlord was also asked for an explanation of how contact with the resident and the representative was managed prior to the cancellation of the DA authority in 2018, the date it was revoked, and any other information pertaining to this. The landlord said it was unable to comment as it had no records, however, requests were sent out to all those with DAs to confirm they required them to continue. If there was no response DAs were removed. As above there is no evidence to support this explanation.
In addition, the landlord’s DA policy specifies that if a DA form isn’t returned within 10 days a case closure letter will be sent and the process closed. There is no evidence that any case closure letters were sent out, suggesting that either a form had been received but not actioned, or there had been a failure to follow the case closure procedure. However, it is not possible for the Ombudsman to determine exactly what happened here.
The landlord also said in its response to the complaint that the resident had first requested a DA form on 13 August 2018, which was posted that day, and when the resident reported on 29 August 2018 that he had not received this, another form was sent along with the 29 August 2018 complaint response letter. The landlord said that the first DA form it received was dated 16 December 2019. Other than this comment, the landlord did not directly address the representative’s contention that two forms were returned prior to this, which was a failing on its part.
In her 23 July 2020 escalation request, the representative noted that she had always acted on the resident’s behalf since his tenancy began, and had DA in place for many years. She stated ‘Neither [the resident] or I received information saying GDPR needed to be updated. It was not sent to me and [the resident] was not living in his flat between Jan and July 18 which Clarion were aware of.’ The representative pointed out that she had no way of knowing there was an issue with DA as the landlord had continued to deal with her after GDPR was introduced until July 2018. The representative said that had the landlord dealt with her June 2018 letter then she would have realised that no DA was in place and again reiterated that two completed DA forms were returned prior to December 2019 but neither was uploaded.
The representative explained that as a result of no DA being in place, the family were not aware of rent arrears on the resident’s account, or of the possession proceedings taking by the landlord against the resident in 2019, and therefore the resident attended court alone. This had resulted in a deterioration of the resident’s mental health. She said ‘Considering his vulnerability how can this possibly be allowed to happen…Why did Clarion staff continue to deal with me after GDPR was introduced and why didn’t anybody realise that there may be an issue given that I had had always been his DA and had so much contact over the previous months?’
In the landlord’s November 2020 final response, it said that it underwent a companywide system change which had two stages of implementation, the first being April 2018. It stated ‘Our strategy in place at the time, with regard to the migration of named advocates and DA data from our previous system, was that all accounts with an existing DA were sent a new form to complete and return.’ It said that DA forms were also issued when requested during the year and a half to follow.
This is a somewhat different explanation than in the stage one response, which cited the GDPR regulations as the sole reason for new DA forms being required. There is no explanation for this difference. Further, the response did not address the representative’s comments about: Receiving no notification of this change; the fact that the resident was not living in his property when the change came about; the landlord still communicating with the representative once DA had lapsed; two forms having been retuned but not uploaded, and; the lapse of DA not flagging an issue with the landlord. The landlord should have considered and responded to these points.
The evidence available shows that the landlord was aware that the resident was vulnerable, and the very fact of a DA being in place indicated that the resident required support. To mitigate the challenges that the resident might have the landlord could reasonably have been expected to inform the representative that changes were being made that would require a new DA form, even if the form itself was then sent to the resident directly. This would have been especially pertinent in this case, as presumably any information about the changes would have been sent to the resident’s home address, at which he was not residing at the time.
This Service would have expected the landlord to have considered and assessed the potential impact and risk that revoking DA may have upon a vulnerable resident and how this would be managed. The landlord has been asked for evidence that such consideration occurred, but none has been provided.
Further, the landlord’s vulnerable resident’s policy sets out that where a vulnerable resident has been identified and referred to the sustainment services, this will be recorded on the customer record so that staff can see if there are particular needs and whether there is anyone with DA to speak to it on the residents’ behalf. Any resident who receives a support service, such as tenancy sustainment, would have their cases managed and reviewed regularly.
The landlord has confirmed that on 11 March 2019 the resident was referred to its Tenancy Sustainment and Welfare benefits team, and a tenancy sustainment officer made a number of unsuccessful attempts to speak with the resident in March and April 2019. In May 2019 the officer conducted a home visit at which point the resident declined the offer of advice and support.
However, there is no indication that during this time consideration was given to the resident’s particular needs, or that his case was reviewed, despite the landlord stating in its complaint response that the tenancy sustainment team were aware of the resident’s vulnerabilities at this time. Had his case been reviewed it may have helped flag up the lapse in DA.
The landlord has confirmed that DA was in place for the resident for many years, and continuously from 2014 up until it was revoked in 2018, but there is no indication of the resident being asked about the lapsed DA at any point. The landlord said in its November 2020 final response that there were no notes to suggest that the resident was asked if he would like a family member to manage his affairs, and said ‘It would not be reasonable to expect Clarion to ask this, especially given that there was no active DA listed on our system at the time…’ This was not entirely reasonable: While asking a resident if they would like a family member to manage their affairs would not be appropriate in most cases, it would have been appropriate, given the history of DA in place for the resident, the forms that were sent out in 2018, and his known vulnerabilities, to ask whether this was something he wanted to reinstate.
It is not possible for the Ombudsman to say whether or not the landlord received DA forms prior to December 2019 and therefore that this should have been in place in 2018/2019. The representative has not been able to provide copies of these, and the landlord maintains that none were received. However, it can be said that the landlord’s handling of and response to this matter was unsatisfactory. There is no evidence that supports its contention that the resident was contacted and invited to complete and return a new DA form in early 2018 due to GDPR, that case closure letters were sent, or that the resident’s vulnerabilities and lapse in DA were flagged up at any point. The response to the formal complaint failed to address many of the concerns raised.
In light of this, the Ombudsman must consider whether these identified failings had an adverse effect on the resident: From the representative’s account there was no immediate detriment to the resident, for example she has confirmed that she was still able to communicate with the landlord on his behalf regarding the asbestos incident.
However, she states that due to the lack of DA, the resident had no support with the rent arrears and associated legal action in 2019, which was very distressing for him. As above, the Ombudsman has not been provided with copies of the forms that the representative states were submitted in 2018 and early 2019, and so cannot say what these indicated in terms of the level of DA.The However, the DA in place from 2014 until it was revoked in 2018 did not instruct the landlord to conduct all communications with the representative rather than the resident (which was one option) but rather allowed for the landlord to discuss tenancy matters with the representative (the second option).
The DA form that was returned in December 2019 also did not require all communication to be via the representative. As such, it would seem likely that the two DA forms that the representative reports were sent but not uploaded would have highlighted this same choice, meaning that communications about rent arrears would have been directed to the resident, not the representative, and it would therefore have been the resident’s decision as to whether to share this information. Further, it is the case that legally required correspondence, for example a notice of seeking possession, must be served on the tenant/to the tenant’s property.
In light of the above, it is not possible to say with any certainty that had the failings identified here not occurred, then the representative would have been contacted about the rent arrears, and that the resident would not have appeared in court alone. In addition, when assessing a complaint the Ombudsman must consider the actions of the resident themselves and any impact these may have had on events. In this case the resident had the option to raise the rent arrears with the representative himself and seek support with this, whether or not the landlord had a registered DA.
However, it is clear that the resident had let the landlord know he wanted his representative to have DA to be able to deal with matters. The landlord’s failure to follow fair process here resulted in uncertainty, distress, and inconvenience to the resident. Further, the confused response to the formal complaint about the matter, which did not address the concerns raised and did not identify any of the failings detailed here, would have been additionally frustrating and upsetting for the resident.
The landlord has explained that it has a new process in place now which means that DAs remain on file until a resident confirms in writing that they no longer require this, and a signature is verified to confirm this. It has also detailed a review of its vulnerable residents policy that would specifically look at how it records vulnerabilities on its systems. These changes should go some way to prevent the failings identified in this case happening again, but do not fully remedy the detriment to the resident.
The Ombudsman finds maladministration here.

An offer of compensation in 2018.

The representative has complained to the Ombudsman that she was not involved in the compensation offer despite the resident advising the landlord that he wanted her to be, and also asking for a DA form. She asks ‘Why was a decision pushed through under these circumstances?’
In its stage one complaint response the landlord said that it was unable to discuss any offer of compensation with the representative at the time as no DA was in place. During a discussion on 29 August 2018, the resident declined the offer of compensation.
The landlord did not act unreasonably in making an offer of compensation here, and there is no indication of it ‘pushing through’ a decision: It considered the resident’s request for compensation, and then made an offer. The Ombudsman would not have expected it to delay this to wait for a DA form to be returned, or to disregard the resident’s decision. It would have been open to the resident to discuss the compensation offer with the representative. There was no maladministration on the part of the landlord here.

Compensation paid in 2020

The representative complains that the amount offered in the May 2020 stage one response was paid despite the representative and the resident declining it and asking that it not be.
In the representative’s letter to the landlord dated 22 June 2020 she advised that the resident did not accept the compensation offered in the 27 May 2020 complaint response, and asked that this was not actioned. She again declined the compensation in an email dated 18 July 2020. In reply on 5 August 2020 the landlord said that as per its compensation policy, the £995 payment was actioned on 28 July 2020 and credited to the resident’s rent account as it was in arrears.
While it perhaps would have been better had the landlord not made the £995 payment in keeping with the resident’s request, and it is understandable that he was unhappy that his wishes had not been taken into account, there is no indication that this led to any significant adverse effect to the resident: The payment did not prevent him from having his further concerns addressed and the compensation award was subsequently increased. No maladministration is found here.

Requests for information

The representative has complained that it took the landlord too long to provide copies of the asbestos reports she requested, and also complains about the landlord’s handling of her request for rent account information.

Asbestos reports

In her 27 January 2020 complaint the representative said ‘I asked for all asbestos reports from [the landlord] and have some of them. Why were they not all provided? Please provide all reports in a form that I can access.’ In the landlord’s May 2020 complaint response, it said that all reports were provided at the time of the incident, but if the representative could confirm the date of the report (from a list provided) it would be happy to provide this.
Given that the representative said that she already had some reports, and was not clear in her request as to what reports she believed were not provided, it was reasonable for the landlord to ask for clarification of this, showing that it was willing to provide any information that was missing. The representative has explained that she subsequently emailed the Chief Executive the following month and was provided with the reports that she required. There was no maladministration here.

Rent account information

On 3 December 2019 the representative emailed the landlord and asked for copies of records relating to the resident’s rent arrears, which she had just found out about. The landlord did not respond to or action this email. However, it did acknowledge this failure in its response to the formal complaint, offered explanations, apologies and £100 compensation. This was a reasonable remedy.
In her January 2020 complaint the representative again asked for copies of records relating to the resident’s arrears. In its May 2020 response, the landlord attached a number of rent statements along with information relating to court action. It said ‘To ensure you receive all the information you’re requesting I’ve raised a Subject Access Request (SAR) process on your behalf.’ This was reasonable and shows that the landlord was taking steps to provide all of the information requested.
In October 2020 the representative chased up the SAR, asking why the information had not yet been provided. In November 2020 the landlord explained that the SAR had been raised, but the Data Protection team had instructed the Customer Accounts team to provide this information directly. The landlord said that it understood that the representative already had all of the documentation relating to the rent account, so was unsure what further information was being sought and asked for clarification. The representative expressed concern about this and asked that the matter be addressed in the stage two response.
The landlord did not act fairly or follow due process here. There is no indication that it was explained to the representative before November 2020 that the SAR request had not been actioned, and that a different team was to provide further information. Neither is there any indication that the Customer Accounts team contacted her or otherwise forwarded on any information. In addition, it was unhelpful for the landlord to ask the representative what information was missing, given she could not know this: She had asked for the information, the landlord had provided some and said a SAR would provide the rest.
In its 12 November 2020 stage two response the landlord said that the SAR was made on the representative’s behalf to ensure that any missed information regarding the arrears was provided. It said that subsequently the Data Protection team made the decision to not treat this as a SAR ‘…due to very specific information being requested, which should be provided to you by the relevant department.’ The landlord acknowledged that this was not communicated to the representative and apologised for this. It enclosed another copy of the documents that had been provided with the stage one response as it believed she was not in possession of these, and said if the representative still required a SAR, she should contact the Data Protection team directly.
This was an unreasonable response. While it was appropriate for the landlord to acknowledge and apologise for the identified failing (not making the representative aware that no SAR was actioned), the rest of the response is confusing: It is unclear why it thought that the representative had not received the documents it had previously provided, and why, despite explaining that the Data Protection team had already made the decision not to treat the request as a SAR, it then referred her to contact the Data Protection team about making a SAR request. Indeed, it is not entirely clear whether there actually was any outstanding information to be provided.
The landlord should have either confirmed that in fact all of the documentation had already been provided, or explained what further information it had to provide and how it would do so.
The representative asked for this information to assist the resident with resolving his rent arrears. Without the information being promptly provided, and without knowing whether it was provided in its entirety, the resident was not able to have the matter fully considered by his representative, who was acting in his interests. Therefore, there was an adverse effect of the resident that has not been fully recognised or remedied by the landlord’s response to the formal complaint.
The Ombudsman finds service failure here.

The handling of the January 2020 complaint

The representative complains about the landlord’s initial decision to spilt the January 2020 complaint into two parts, and only answer one of these as a formal complaint. She also complains about the overall time taken to respond at both stages, and errors and omissions in the responses.
The landlord’s complaint policy set out that initial queries will be resolved by one of its teams where possible before a formal complaint is recorded. Following communication between the representative and the landlord about the January 2020 complaint, it wrote to her on 16 March 2020 explaining that the first four issues she had raised (about asbestos dating from 2018) had been passed to the Property Services team to provide a response as ‘the experts’ on the issue. It said ‘Once you’ve had the opportunity to review their response to the points you’ve raised, if you remain dissatisfied you’d then be able to raise a complaint under our complaints process.’
The more recent ongoing matters concerning the handling of the previous complaint, DA, and the management of the arrears were being dealt with as a complaint. This approach was in keeping with the complaint policy, given the landlord’s understanding that the asbestos matters were historical and had not been responded to, and so was reasonable.
The landlord also explained that due to the complexity and volume of questions posed it would not be able to provide a response within its usual timeframes.
In reply on 17 March 2020 the representative questioned the reasoning behind this handling, referring to it as illogical and asked the landlord to confirm it would deal with the entirety of the matter as a complaint rather than splitting it. She asked a number of additional questions about the matter. There is no evidence that the landlord responded to this. It would have been appropriate for the landlord to have provided a response, even if just to reiterate its position.
After the representative contacted the Chief Executive the landlord wrote to her on 24 June 2020, setting out its complaint handling policy, and went on to explain that it had considered that as the first four issues raised related to an incident that was resolved in August 2018 they were more appropriately dealt with as an enquiry. Neither was there any enquiry raised with the Property Services team in the last six months that remained unanswered. The landlord said ‘By raising this as an enquiry it allows you the option to raise a complaint should you remain dissatisfied with the response you’ve received.’ It said that as the remaining complaints related to the handling of the 2018 complaint and the lack of response, more recent issues relating to DA and the managing of rent arrears, the decision was made to investigate these via the complaints process.
This was a reasonable explanation. While it is understandable that the representative and resident wanted all of their concerns to be addressed in their entirety, ultimately it is reasonable for a landlord to decide how best to address a complaint in line with its complaint policy. As it was, this decision did not have any detrimental impact on the response provided. The Property Services’ 27 May 2020 letter answered all of the questions in the same manner that the formal complaint response of the same date did. The decision to split the complaint did not disadvantage the representative or resident in terms of receiving the information requested. Further, the landlord did then agree to provide a response to all points at stage two, so the initial decision to split the complaint did not disadvantage the resident in terms of being able to escalate the complaint.
The representative raised the decision to split the complaint in the 23 July 2020 escalation request, and in its 12 November 2020 response the landlord repeated its explanation as to why it made this decision. The landlord said that in hindsight the relevance of the asbestos incident in connection to the other points was clear, and therefore all points were considered together in the review.
Again this was appropriate. Given the unusually large number of issues and questions that were put to the landlord, it is understandable that it may not have been initially clear the ways in which the issues interconnected. Other than omitting to respond to the representative’s 17 March 2020 email, there was no failing here.
In relation to the time taken to provide the formal responses, at stage one the landlord explained that due to the complexity and volume of questions posed it would not be able to provide a response within its usual timeframes. The representative had specifically stated that she expected a reply to each and every question that she had posed, and it is clear that the landlord took this on board and made attempts to satisfy the request. Given that there were around 90 specific questions, some relating to issues dating back to January 2018, it is understandable that it took the landlord much longer than would usually be expected to provide the May 2020 responses.
When the landlord acknowledged the representative’s escalation request on 1 October 2020, it explained that while it aimed to provide a response within 20 working days, due to the complexity of the case it may not be possible, but the representative would be kept updated. The landlord then provided this update on 29 October, apologising for the delay and stating that a response would be provided by 12 November 2020.
Regarding errors in the responses, the representative has given the following examples:
1. While the landlord said that all asbestos reports had been provided to her, this was not the case.
2. The landlord said ‘You make reference to correspondence with Clarion between June and July 2018, suggesting you have discussed sensitive information regarding [the resident’s] account: The representative states that she did not say this, but rather that the landlord had continued to correspond with her despite the lapse in DA.
3. The landlord said that she was present at a meeting on 15 May 2019 when she had not been.
While such errors may have been frustrating for the representative, there is no indication that they had a significant adverse effect on the resident or impacted the outcome of the complaint. Given the very large number of questions posed and the historic nature of some of the issues, it was perhaps understandable that some minor errors were made in the information provided.
Overall, the Ombudsman finds that the 2020 complaint was handled appropriately by the landlord. There was no maladministration here.

Determination (decision)

In line with section 54 of the Scheme, the Ombudsman finds that there was:
1. Reasonable redress relating to the asbestos incident in January 2018.
2. Reasonable redress relating to the complaint made by the representative in June 2018.
3. Maladministration relating to the DA process.
4. No maladministration relating to an offer of compensation in 2018
5. No maladministration relating to compensation paid in 2020.
6. Service failure relating to requests for information.
7. No maladministration relating to the handling of the 2020 complaint.

Reasons

The evidence available shows that the customer service and communication relating to the asbestos incident was reasonable. There was a significant failing with the bedroom door replacement, but this has been remedied via the landlord’s complaint process. This was also the case with the landlord’s failure to respond to the June 2018 complaint: It has remedied this via the complaint process.
The compensation offers and payments in 2018 and 2020 were dealt with reasonably and there is no indication of any detriment to the resident relation to these matters.
The request for asbestos reports was dealt with appropriately, but there were failings in the way the requests for rent account information was handled. The landlord has offered a reasonable redress in relation to the 3 December 2019 email not being responded to but has not fully recognised the additional failings in the handling of the request in 2020.
There were a number of failings in relation to the DA process, and the landlord has not been able to evidence its position on the matter. It is particularly concerning that the lapse in DA did not flag up with the landlord at any point. The response to the complaint failed to address the concerns that were raised.

Orders and recommendations

By 21 January 2022 the landlord must:
1. Pay the resident a total of £375 (£300 for the adverse effect caused by the landlord’s handling of the DA and its response to the subsequent complaint, and £75 for the adverse effect caused by the handling of the requests for information).
2. Write to the Ombudsman and the resident’s representative to confirm that, as stated in the November 2020 complaint response, the vulnerable customers policy has been reviewed, and whether or not this has included how best to record the needs of vulnerable residents. The letter should detail any changes made and how these are expected to help ‘ensure residents got the best support necessary.’

Recommendations

The landlord should let the representative know how she/the resident can obtain any further relevant records relating to the rent account, should these still be required, and whether or not a SAR is necessary. The landlord should also provide contact details for the Information Commissioner’s Office if the resident or representative are dissatisfied with the landlord’s provision of information.
The landlord should inform that Ombudsman whether it intends to carry out this recommendation by 21 January 2022.