Notting Hill Genesis (202113786)

REPORT

COMPLAINT 202113786

Notting Hill Genesis

30 September 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about:
1. The landlord’s response to the resident’s request to be transferred to another property.
2. The landlord’s handling of the resident’s request for adaptations.
3. The landlord’s response to the resident’s request for mobility scooter storage.
4. The landlord’s complaint handling.

The scope of this investigation

The resident’s complaint was about the landlord’s delays in assisting him to move to another property and in carrying out adaptations to his property. Under section 39 (d) and (e) respectively of the Housing Ombudsman’s Scheme, the Ombudsman may not consider a complaint that was brought to the Ombudsman’s attention normally more than 12 months after it had exhausted the member’s complaints procedure and/or was not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within 6 months of the matters arising.
In accordance with paragraph 44 of the Scheme, the Ombudsman will decide how to consider and investigate complaints subject to the Scheme, and taking account of the evidence of service failure presented.
According to the landlord, it had already addressed some aspects of the resident’s complaints. Some complaints have previously been investigated by this Ombudsman scheme. After 2016, the resident did not refer complaints to this service for investigation, prior to those made in February, March and April 2021.
In the circumstances, the Ombudsman does not consider it to be reasonable or proportionate to investigate the resident’s complaint in relation to events prior to 2020, and that go back six or more years. However, the Ombudsman will comment on aspects, where it deems it to be appropriate.

Background and summary of events

The resident occupied a one-bedroom flat on the second floor of a block under a 5-year fixed term assured shorthold tenancy, which began in October 2014. The block was served by two lifts. The property had been allocated to him by the local authority. The resident had a number of physical disabilities and, as an amputee, was a wheelchair user. He also suffered from anxiety and depression. He occupied it with his partner who also had disabilities.

The legal and policy framework

Under the landlord’s complaint policy, it would not address a complaint where it had already responded to that complaint. In order for the landlord to be able to fully investigate and resolve complaints, the policy stated that complaints should be made within a reasonable period. This would normally be within six months of the matter occurring, although in exceptional circumstances it could consider a complaint outside of this timescale.
Under the Equality Act 2010, the landlord had an obligation to make reasonable adjustments for a person suffering under a disability. There was no dispute that the resident was disabled as defined by that act. Under Schedule 4 of the act, “it is never reasonable for A (the landlord) to have to take a step which would involve the removal or alteration of a physical fixture.”
Under the existing transfer policy, (March 2021) the landlord would place an applicant on a banding system. Anyone on the lowest categories would wait “a long time”. There was an appeals procedure if the resident disagreed with the banding decision. The applications were prioritised as follows:
1. Band A where the resident had a life-threatening medical condition that was seriously affected by their current housing.
2. Band B where the resident had a medical need to move and was adversely affected by their current housing.
3. Band C where the resident had a medical condition that was moderately affected by their current housing or a need to move had been identified in a Social Services care plan.
4. Band D was for all other tenants who had a desire to move, but did not have an identified need to move.
In exceptional cases, the landlord could consider a resident for a management transfer where there was a risk to the safety and wellbeing of that resident. The management transfer status gave the resident priority over other residents on the transfer list and facilitated an urgent move.
Circumstances included domestic violence, harassment, and family breakdown. Medical reasons for needing to move to a larger property did not fall under the management transfer procedure.
Direct offers could be made for such residents in the highest band and where there was an “emergency” need to move.
Under the adaptations policy, the local authority (LA) or social services department were responsible for supplying mobile or non-fixed aids.
Works for major adaptations could be funded by a disabled facility grant (DFG). Major adaptations could include, but were not limited to, the installation of wetrooms, and kitchen adaptations or lowering of kitchen units. The landlord had funding agreements with the LA for full, joint, and partial funding of DFG works. It would always apply for a grant, if one was available. Either the landlord or tenant could apply for a grant. If the resident requested major adaptations to be carried out to their home, they should contact social services and request an assessment from an occupational therapist (OT).
The landlord was not legally required to carry out adaptations to residents’ properties.

Chronology

An OT assessment carried out while the resident occupied a previous property had recommended that the resident be re-housed to a one–bedroom, ground floor, wheelchair accessible property with a wetroom facility, and ramp to go outdoors to access his scooter/wheelchair. The accommodation should be level access throughout, to enable the resident to leave his home and access the community without assistance. The property should have the potential to have an automated door entry phone and ramp.
According to the resident, and it was not disputed, he made a transfer application on 27 September 2015 to be moved to alternative accommodation on the ground floor. The landlord proposed to place him on a transfer list. A local authority OT report stated that, as the current property was wheelchair accessible and appeared to have potential to meet his needs, there were no functional grounds on which the OT could recommend re-housing at that time. The OT agreed to investigate whether kitchen adaptation works were necessary and appropriate. The resident’s complaint that he had been allocated an unsuitable property had been investigated by the Local Government Ombudsman (LGO) in July 2016, given it was a matter for the local authority.
On 23 August 2016, the Housing Ombudsman found no maladmistration regarding the resident’s complaint regarding lift repairs, an evacuation chair, and the landlord’s decision not to provide storage space for a mobility vehicle, due to the vehicle being too large at the time. The report noted that while suitability of the property was worth considering, the LGO had considered the matter.
The landlord’s medical assessor noted on 23 January 2018 that, according to an OT report, the accommodation was wheelchair accessible and met the applicant’s needs.
The landlord’s solicitor wrote to the resident’s solicitor on 21 February 2019 as follows:
1. The block was served by two lifts.
2. The landlord’s medical assessment considered the resident was adequately housed but it would review the matter on receipt of further evidence, including an OT report.
3. Adaptations were carried out to the communal doors and wetroom by the local authority.
4. It denied that the landlord had a duty to comply with the resident’s request for adaptations on the basis that they amounted to an alteration of a ‘physical feature’, relying on Schedule 4 of the Equality Act 2010.
In April 2020, the landlord referred the resident to the local authority for assistance with rehousing.
On 30 July 2020 and 21 August 2020, the landlord suggested alternative properties to the resident.
On 25 August 2020, the resident made a complaint about both lifts not working. On 27 August 2020, the landlord wrote to say they were both in working order.
The resident wrote to the landlord on 27 August 2020 stating that he wanted to make a complaint that, for over five years, he had been living in a property where he could not cook for himself because the kitchen was unsuitable for wheelchair adaptation. He reported that an OT had assessed the kitchen on 17 August as “unsuitable for wheelchair adaptation.”
The local authority’s OT assessed the resident and produced a report on or around 17 September 2020 following its assessment on 17 August 2020 as follows:
1. The flat was wheelchair accessible and had wetroom access.
2. It assessed the resident’s concerns and needs.
3. It suggested two options:
  1. Either adapting the existing property with a remote-control opener, wheelchair–accessible kitchen, wetroom adaptation, and ground floor storage for the resident’s mobility scooter. The local authority was in process of applying for a grant.
  2. Or a move to an adapted property or one with the potential to adapt, according to criteria including wheelchair access throughout, kitchen with height adjustable worktops, suitable storage and charging point for his mobility scooter.
4. The resident should speak to the landlord about providing a scooter shed with a power point to store and charge the scooter in a secure place.
5. The resident’s preference was for a move. In the meantime, the grant applications were already in progress.
The resident wrote on 18 September 2020 that he would complain until the kitchen was fully adapted for a wheelchair user. He also explained the impact on his independence if the lifts stopped working. The only resolution for him was a move to a ground–floor flat.
The landlord replied on 18 September 2020 as follows:
1. It referred to a visit it had made on 8 September 2020.
2. It had arranged for adjustments to be carried out on the lift so that the doors could remain open longer.
3. Its adaptations team had inspected the property on 17 September 2020 and was preparing a report.
4. The landlord did not have any ground–floor properties available. It would let the resident know when one became available and had been assessed by an OT.
On 21 September 2020, the landlord’s adaptations team made the following recommendations:
1. The bathroom/wetroom had a major issue with mould due to the extractor fan not working. This extractor was a communal system that the landlord had not been able to change itself, but parts were awaited.
2. The current wet area was too small and it suggested a larger wetroom and a better design, including of the sanitary ware, to avoid mould and provide easier use. It also considered the resident’s partner’s needs.
3. The current front door closer installed made it difficult for the resident and it suggested it was automated.
4. The flooring should be changed to non-slip. The OT could explore the feasibility of a kitchen and shower area adaptation through a disabled facility grant application.
The resident replied on the same day that all the issues had been brought up over the past six years. He reported that the landlord had stated that it would not deal with anything unless it had happened in 2020. He wished to move to a ground–floor property. He also wrote separately referring to making a claim for personal injury.
The landlord replied on 18 September 2020. It had responded the previous week to his report of gates not working and had arranged for a repair. It stated that the resident had already raised the majority of the points in previous complaints and had been investigated and concluded by the Housing Ombudsman. It would only investigate new complaints.
The landlord replied on 21 September 2020, stating the events occurred before the particular housing officer’s involvement and that the personal injury claim should have been raised with the previous housing officer.
The landlord wrote to the resident on 13 January 2021 to state that the adaptations he had requested (i.e. replace the existing level access shower, install an automated door system to the flat, and provide kitchen adaptations as recommended by the OT) had been approved. It alerted the resident that once adaptations were done, he would no longer have a valid reason to request a move, as the property would be deemed to be suitable.
On 8 February 2021, the resident wrote referring to an inspection of an adapted ground–floor property. He asked the landlord to accept his email as a complaint that the landlord had refused to provide him with alternative accommodation as it had asked him to complete a fresh transfer form, which he felt it would lead to the same result.
The landlord replied on the same day that the banding was based on the information that the resident had submitted. However, the landlord had been trying to assist him to move to a ground–floor property, even though the outcome of its assessment concluded that he was already adequately housed.
The landlord wrote on 11 February 2021 with an update and explanation for delay in offering him a particular property and that it would continue to look for alternative property.
On 15 March 2021, the resident made a formal complaint that the OT report of 17 September 2020 had stated that he should be provided with suitable permanent accommodation and what adaptations were recommended, but this had been ignored.
The resident wrote on 11 April 2021 that the adaptation work to install a wetroom and an automatic door opening system to the front door would start on 12 April 2021. He was happy that the landlord had agreed to provide mobility scooter storage. He felt the property would still be unsuitable because of the lifts. He also said he would decline the kitchen adaptations as he had concerns about works taking place while he and his partner were in decant accommodation.
On 30 April 2021, the resident made a complaint about the landlord’s failure to make reasonable adjustments between 2014 and 2021 stating that it had unlawfully discriminated against him as follows:
1. By failing to implement the recommendations that were made by the Local Government and Social Care Ombudsman and the Housing Ombudsman Service.
2. By forcing him to move into a second-floor property before it was fully adapted.
3. By refusing to cover the cost of making reasonable adjustments to the property.
4. By forcing him to contact the local authority and apply for a Disabled Facilities Grant.
5. By refusing to give permission to the LA to make reasonable adjustments between October 2014 and February 2015.
6. Refusing and/or delays to make reasonable adjustments to the property when the property was a new build. It had taken two years to install an automatic door entry phone system.
7. By refusing to provide an emergency evacuation chair, provide an emergency pull cord and a mobility scooter storage facility.
8. By refusing to provide alternative suitable accommodation on the ground floor.
On 13 May 2021, the resident confirmed that the front door had finally been automated, the kitchen had finally been adapted so that he could use it independently, anti-slip flooring in the kitchen had been fitted, a wetroom shower facility has been installed that met his needs, an extractor fan had been installed in the bathroom and a lowered bathroom sink has been installed.
The landlord responded to the resident’s complaint on 14 May 2021 as follows:
1. The Ombudsman had already addressed the delays in making reasonable adjustments and related issues (grant application, recommendations by the Ombudsman services), and referred to an investigation by the Local Government Housing Ombudsman in 2016. There had already been a determination by the Housing Ombudsman in relation to the allocation of the property. It was a matter for the LA. The landlord had had no involvement in the allocation process.
2. Discussions had taken place between the LA and the landlord regarding providing storage for the mobility scooter. The landlord had no objection for the works to go ahead.
3. It explained why the works could not take place during a defects period.
4. The works commenced on 12 April 2021 and had been completed the week before sending its letter. It explained that the works took time in order to ensure that the works were carried out correctly. On 12 April 2021, the resident declined the works on the kitchen and then changed his mind, so the works began on 4 May 2021. The matter had therefore been resolved.
5. An emergency pull cord would not have been included in the OT’s assessment. It noted that he had raised the matter of having an alarm system fitted in the property. The OT would complete a referral. It had requested an update and provided contact details.
6. Due to limited availability and the requirements needed to accommodate his needs, it had not been able find him a suitable property. It made alternative suggestions, including a two-bedroom property, although he would be affected by the ‘bedroom tax’, and supported housing.
7. It referred to the determination in August 2016 by the Housing Ombudsman. It considered that it had failed to pay the £100 compensation for delay to the repair and complaint response. It offered an additional £100 for the failure to process the payment.
The resident wrote on 28 May 2021 asking for the complaint about being transferred to a ground–floor property be escalated and set out a number of emails dating back to 2015.
The landlord wrote on 9 July 2021 with its final response as follows:
1. It noted that issues from 2014, 2015 and 2016 had been dealt with by the respective Ombudsman services in 2016.
2. Adaptations works were completed on 13 May 2021 and therefore it considered the matter to be resolved.
3. In relation to storage concerns for the mobility scooter, it referred to its stage one response and its surveyor would be contacting him.
4. Given there were no decisions of maladministration made by the Ombudsman between 2015-2021, it therefore would not be addressing the historic issues raised in his complaint escalation.
5. The landlord was doing what it could to transfer the resident to a ground–floor property.
6. In relation to the suitability of the property, it had taken steps to make adaptations. Despite the assessment that he was already adequately housed, the landlord was working to find him alternative accommodation as a priority. However, it understood the stress that this had caused, and it offered £250 for his stress and inconvenience. He was also due £100 from his previous complaint and a further £100 for the late payment.
On 12 July 2021, the resident declined an offer of two studio flats. He also declined the compensation on the basis it was not sufficient. There was further reference in correspondence to an inspection of a flat on 14 July 2021.
On 19 July 2021, the landlord explained its change of stance in 2020, to offering him alternative suitable accommodation. It had taken on board his dissatisfaction with his property.
There was further correspondence in July 2021 to November 2021, regarding further suggestions and viewings of alternative accommodation.
In April 2022, the resident and his partner moved to a bungalow.

Assessment and findings

The landlord’s response to the resident’s request to be transferred to another property.

There was no dispute that the resident required a property with wheelchair access. It was also established by the Local Government Ombudsman that the allocation of the property and its suitability was a matter for the local authority, and not the landlord. No fault is therefore attributed to the landlord for the fact the resident was allocated a second floor rather than a ground floor flat. In any event, access is generally deemed to be acceptable where there is a lift service, and no OT report stated otherwise.
The resident’s complaint was that the property was not suitable due to the lifts not working. The Ombudsman has noted that the resident raised a complaint in 2016 where the Ombudsman found no maladministration. The resident raised a further complaint in 2020. The Ombudsman appreciates the impact that non-working lifts would have on the resident. However, the Ombudsman does not consider that the functioning of the lifts would, in itself, render the property unsuitable. Moreover, the OT report did not deem the property to be unsuitable for that reason, in particular given the report recommended that the property be adapted.
The resident queried why the landlord had not assisted the resident with alternative accommodation sooner than it did. The landlord had placed the resident on a transfer list and banded his application as a low priority. The Ombudsman role is not to assess the resident’s needs, but to consider the evidence, the landlord’s decision making and the principles it applied, and the response by the landlord. There was no evidence that the resident qualified for a management move or a direct let in the meantime. There was scope for the resident’s priority to be re-categorised in the landlord’s banding system and for the resident to appeal the decision. While the Ombudsman has not investigated the events prior to 2020, it is noted that the landlord stated it would review the matter on receipt of further evidence, including an OT report. The resident could have obtained an OT report (as he did eventually) by contacting social services. He had also sought independent advice. While the resident did not agree, there had been no third-party professional evidence that the resident had a medical need to move. The September 2020 report considered that the property could be adapted as an alternative to a move. The landlord was entitled to rely on the OT assessments.
However, the landlord reasonably exercised its discretion and in 2020 began to work with the resident to find a ground–floor property, despite the evidence that he was suitably housed.
The resident’s complaint stated that the OT’s report of 17 August 2020 had assessed the kitchen as “unsuitable for wheelchair adaptation.” However, the report not only stated that adaptations were an option but that a grant application to fund the works was already in progress.
Initially, the landlord’s position was that it would no longer consider the resident in need of a move once the adaptations had been completed. However, again it exercised its reasonable discretion and continued to actively seek a move on the resident’s behalf.
The evidence showed that the landlord made a number of efforts to find alternative accommodation and was proactive in that regard. Its explanation that this would be a lengthy process, due to a shortage of ground–floor one-bedroom properties and that it had to be either adapted or adaptable was reasonable. It made a number of alternative suggestions. The landlord’s explanation that, in early 2020, it noted that it had considered the resident’s difficulties and that, as a consequence, had made a discretionary decision to assist him to move, was reasonable. The evidence showed that the landlord was eventually successful. The landlord also demonstrated its concern for the resident by offering £250 compensation for the delays. The Ombudsman considers that to be a reasonable offer and in line with its own level of compensation.

The landlord’s handling of the resident’s request for adaptations.

While the Ombudsman has not investigated events prior to 2020, the Ombudsman has noted there was some evidence that the resident requested adaptations through his solicitor in 2019. There is no evidence of what adaptations the resident requested. There was evidence that adaptations had taken place.
However, while the property was considered to be suitable by the local authority, the Ombudsman would also have expected the landlord to have considered whether adaptations would have eased the resident’s living situation, given the period of years he had occupied the property. It is also noted, however, that the resident’s focus was on moving to a ground–floor property, principally because of the lifts. The landlord had suggested (albeit for different reasons) that the resident obtain a further OT report. There was no evidence that the resident had reported that his use of the kitchen and bathroom was limited until after the OT assessment carried out on 17 August 2020. The Ombudsman makes no adverse findings against the landlord in relation to not being proactive in relation to considering adaptations but will make a recommendation in this regard.
The resident’s complaint appeared also focussed on the landlord not carrying out the OT recommendations of September 2020, whereas the evidence demonstrated otherwise.
It was reasonable and in accordance with its policy that the landlord would expect the adaptations to be funded by a grant in the first instance. There was no evidence that the landlord refused to fund the works. In any event, the question did not arise as the OT was already applying for a grant.
Whether the landlord had a legal obligation to make adaptations would be a matter of fact and circumstances, including whether it involved removing or altering a physical fixture and whether the adaptations were reasonable and proportionate. However, once the OT report of September 2020 was put to the landlord, the evidence indicated that the landlord worked with the local authority to agree and facilitate the adaptations. Indeed, its own team inspected the property and made a number of findings. The works were carried out within a reasonable timescale, given the preparation required, the impact of the pandemic at the time, and the initial postponement of the kitchen works by the resident.
In relation to providing personal alarms and similar, it was reasonable and in accordance with the landlord’s policy that this was for the local authority to deliver. The landlord reasonably made enquiries on the resident’s behalf.

The landlord’s response to the resident’s request for mobility scooter storage.

While the resident had made a previous complaint regarding his request for storage space for a mobility vehicle, given this was six years previously and the decision was based on the size of the scooter at the time, the Ombudsman would not consider that decision would necessarily apply to a request for storage for a different scooter.
However, in the Ombudsman’s view, the evidence showed that when the request for a storage facility was renewed, the landlord worked with the local authority to arrange for a storage facility. The Ombudsman therefore finds there was no service failure by the landlord in that regard.

The landlord’s complaint handling.

It was reasonable of the landlord to limit its investigations to 2020, a year prior to the complaints themselves. However, the landlord could have still considered the complaint regarding the delay to adaptations, even though at the time of the final response, the matter had been resolved. However, it was not clear whether the resident was asking to escalate that aspect of his complaint.
The landlord should not limit its responses to the time a particular officer was in post. The Ombudsman would expect a landlord to investigate its records, and address events regardless of who was in post. While this did not affect the complaint response itself, the Ombudsman will make a recommendation that the landlord’s staff do not state that is the case.
It was also reasonable for the landlord not to reinvestigate matters that were determined by its own complaints procedure and/or by an Ombudsman. However, the landlord’s decision should be more nuanced. Circumstances can change and a complaint should be considered and rejected on its own merit, based on the facts at the time. The complaint regarding the mobility scooter was an example. Moreover, there was no evidence of any Ombudsman decisions since 2016. Equally, however, the resident complained that the landlord had not implemented recommendations of the Ombudsman services. The Local Government Ombudsman would have addressed issues concerning the local authority, not the landlord. The only recommendation the Ombudsman made in 2016 was to consider adopting a mobility vehicle policy and did not concern the resident personally. In any event, while it is desirable for the landlord to follow a recommendation, the decision remains at the landlord’s reasonable discretion, as it may have to weigh up a number of factors.
Given the landlord was entitled to limit its period of investigation, the Ombudsman does not find service failure but will make recommendations regarding the landlord’s complaint handling.

Determination (decision)

In accordance with Paragraph 55b of the Housing Ombudsman Scheme, there was, in the view of the Ombudsman, reasonable redress in relation to the landlord’s response to the resident’s request to be transferred to another property.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s handling of the resident’s request for adaptations.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s request for mobility scooter storage.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s complaint handling.

Reasons

While the professional evidence at the time did not support that the property was not suitable, the landlord exercised its reasonable discretion and proactively sought to identify suitable alterative accommodation for the resident, even once adaptations were carried out to the property, and offered reasonable compensation for the time it took to do so.
On receipt of an OT report, the landlord worked with the local authority so that the recommended adaptations were carried out within a reasonable period.
On receipt of a renewed request for a mobility vehicle storage, the landlord reassessed the matter and worked with the local authority to arrange this.
The landlord was entitled to limit its investigation of the resident’s complaint to a reasonable period. While it was over reliant on citing previous decisions, in the Ombudsman’s view, the landlord addressed the resident’s complaints satisfactorily.

Recommendations

Even where there is insufficient evidence that a resident has a medical need to move, the landlord should consider whether adaptations for a disabled person could improve the person’s living situation. It should keep the matter proactively under periodic review, whether by referring a resident to its local authority for an OT assessment or by an inspection by its adaptations team.
The landlord should consider its adaptations policy, and whether in the factual circumstances of the case, it has a legal obligation to carry out adaptations to a property.
When considering whether a complaint has been dealt with by its internal procedure or an Ombudsman, the landlord should have regard for the circumstances of the particular complaint and consider whether a resident was justified in bringing a further complaint.
The landlord should consider training of its staff and ensure its responses do not limit its complaint handling to events during the course of a particular housing officer’s employment.