Orbit Group Limited (202009649)

REPORT

COMPLAINT 202009649

Orbit Group Limited

19 November 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 complaint is about the landlord’s:
1. Handling of the resident’s management move.
2. Response to the resident’s concerns about the cost of heating at the property.
3. Response to the resident’s concerns about a safeguarding matter being raised.
4. Response to the resident’s concerns about a contact restriction.

Background and summary of events

The resident’s tenancy agreement says that the resident must not behave in the following ways or allow anybody else to behave in the following ways, whether in the property, the locality of the property or at one of the landlord’s offices:
1. Behaving in a way that is likely to annoy or cause nuisance.
2. Harassing any of the landlord’s staff, contractors or representatives.
The landlord’s complaints policy says that it is unacceptable for anyone making a complaint to be abusive, harass its staff, communicate with it in an inappropriate way, or refuse to accept the decisions it takes in line with the policy. Where there is an ongoing, persistent or very serious issue including persistent breach of a communication plan, this could be considered a breach of tenancy. Actions taken may include the introduction of a communication plans setting out appropriate and agreed communication guidelines and/ or a final warning letter.
The landlord’s management move procedure says that management moves are not a facility that residents can apply for and should be driven by staff. The discretion to agree a move is the landlord’s and there is no right of appeal by the resident. The internal business case should provide details of the resident’s housing need including property type, number of bedrooms and location(s) they could move to.
The landlord’s safeguarding policy says that if an employee either witnesses, receives a disclosure, has reason to suspect, or can simply answer ‘yes’ to the question; “Am I worried about this persons safety or wellbeing?”, then a ‘safeguarding concern’ should be raised.
The resident is an assured tenant of a property owned and managed by the landlord, a housing association. The property is a two bedroom flat.
The resident was represented by her daughter in bringing the complaint to the landlord and to this Service. The resident’s daughter is referred to in this report as “the representative.” The representative lives with the resident.
In September 2019 the landlord issued a final response to a formal complaint brought by the resident concerning heating in the property. In response to the formal complaint the landlord installed a new storage heating system in the property in October 2019 and offered the resident a management move to a like for like property.
On 15 January 2020 the representative contacted the landlord to report a heating failure. The landlord attended the property and made the following note, “Reset times and advised Customer how to program”.
On 16 June 2020 the representative sent an email to the landlord’s CEO to express concern about it offering the resident a management move to a property in a block where the resident had previously lived. The representative explained that she and the resident had been moved from that property by the landlord because the representative had been “hospitalised with a lung condition due to the pigeon issue in that block offered.” The representative also said that she and the resident were living with no heating as it was too expensive to run.
There is evidence that, in addition to the property in the block where the resident had previously lived, the landlord made two further offers of properties to the resident. The resident declined to view both the properties as she considered that they were not like for like offers as they didn’t include a lift.
The landlord sent the representative an email on 18 June 2020 saying that her concerns would be investigated as a complaint. The representative replied the same day saying that she and the resident wanted the landlord to offer them a like for like property. She also said that she and the resident were £2000 in debt as they had been paying £40 a month for a heating system that did not work properly.
The landlord sent the resident its stage one complaint response on 8 July 2020. In its response the landlord said that:
1. It noted the representative’s frustrations at being offered a property in the block where she previously lived.
2. Its lettings team would not have been aware of the historic complaints concerning the block but would only have been looking at the fact that the property was in the resident’s preferred area and was a two bedroom property (like for like).
3. The resident’s current property was in a block of newer build lifetime homes, and therefore had a lift, despite it being a low-rise block. Older low-rise blocks would not have a lift.
4. It had limited stock within the area she had identified as suitable to move to.
5. Management moves normally only consisted of one offer. However, it had made three offers, with a fourth being offered recently, and it understood the reasoning for the resident’s refusals “to a point.”
6. The most recent property offered would be the final offer as the landlord had been more than reasonable.
7. It was possible that incorrect use of the heaters would use more energy. There had not been a report to the landlord of the heating failing since 15 January 2020.
8. It had previously suggested that the resident discuss the heating costs with the energy provider.
9. The heating issue had been dealt with in a previous complaint. However, the resident could ask to escalate the complaint about the management move to the review stage.
On 8 July 2020 the representative asked the landlord to escalate the complaint to its review stage. The representative explained that the current heating complaint was about the storage heaters installed in October 2019, not about the previous heating system that had been the subject of the previous complaint. The representative said that the heating cost £23 a day. The representative also said that the landlord had offered three properties, not four and none of the properties offered were like for like: two had no balcony or lift and the third was in the block where they had previously lived and had no lift.
The landlord replied to the representative on 8 July 2020 and asked her to provide copies of her heating bills to allow it to look at the heating costs as part of the review.
The representative replied the same day, saying that the energy supplier had confirmed there was no problem with the meter and had told her that it cost £23 a day if the storage heaters were turned on and the energy consumption cost was only £4.50 if the storage heaters were turned off. The representative also attached a copy of the latest electricity bill.
The landlord replied to the representative on 8 July 2020 saying that the heating was costing more than expected and there might be an error on the system so an engineer might need to attend to investigate the system. The landlord also thanked the representative for the screen shot of the electricity bill she had sent the landlord. However, it needed a full bill to detail usage, charges, payments made and amount left. The landlord asked the representative to request a full bill from the energy supplier.
The representative replied on 8 July 2020 saying it would not allow access for the landlord’s engineers. She said that engineers had already been to the property and had informed them “the storage heaters are of no use to this property and it is common knowledge.” The representative also attached a document from the energy supplier detailing the energy expenses and said, “The bottom line is that we have to live with no heating. It is not because it does not work, it is just of no use to the property to begin with. We cannot afford to have the heating on. It is not a matter of settings etc.”
The landlord replied on 8 July 2020 saying that the document attached by the representative to her email did not detail the usage or the associated charges. The landlord said that it understood her concerns about letting engineers in, and once it had the full bill and information from the heating team it would make contact again to agree a way forward. However, the landlord repeated that high bills might be due to an issue with the system, and it would need to get engineers to investigate this.
The representative replied the same day saying she would contact the energy supplier for more information. She also referred to a letter from her mother’s GP in which she said the GP said her mother could not live with storage heaters because of a tumour on her right lung. The representative also said that this letter had been sent to the landlord. The following day, in response to the landlord’s enquiry as to what she would consider to be a like for like property, the representative said that a property would need a lift, balcony, two bedrooms and not be an old property.
On 10 July 2020 the landlord sent an internal email saying “It is not for the customer to determine what like for like is unless they have a medical need which needs to be proved. In terms of allocation of housing the like for like is based on type i.e. flat/house and if a flat what floor, number of bedrooms and number of people that can occupy i.e. two bedroom 3 people. I would suggest we advise the customer we do not have the stock in her current choice of area. And ask where else she would consider or at least how far she is willing to go outside of her preferred areas, we can then look at what is in those areas.”
The landlord sent the resident an email on 5 August 2020 with the outcome of its review of her complaint. In its review response the landlord said that:
1. It agreed with its original complaint response.
2. The properties that it had offered the resident had met the definition of like for like that it would normally expect to work to.
3. It understood that the resident required both a balcony and lift in a property as she had these in the current property. The landlord had reviewed its entire property portfolio in the areas she had indicated they would be willing to live. The landlord did not have any other properties that met the requirements and therefore, based on the request to have a lift and a balcony and the preference to live in a certain area, the landlord was unable to facilitate a management move.
4. If the resident was willing to move to another geographical area where it had properties available, then the landlord could explore whether there was anything that met the requirements.
5. There were alternative options available should the resident wish to move properties. This would include contacting the local authority to apply for housing, or to explore mutual exchange.
6. The representative had provided the landlord with screenshots showing the energy use between 30 October 2019 and 2 July 2020 which showed that the daytime energy use cost £793.61 and the night-time energy use cost £281.93. Having calculated the usage and cost over the time period supplied, the total daily usage of the heating system equated to £4.37 approximately per day which did not support the representative’s claim of the energy costs being £23 per day.
7. The energy use appeared to be slightly higher than the average, however its conclusion was that this was more than likely due to how the system was being used. It also noted that it had made separate visits to the property on 29 October 2019 and 15 January 2020 and both times found that the system was set incorrectly, and that it needed to be reset. On both occasions, its engineers had showed the resident and representative how to operate the heating system correctly.
8. If the representative felt that the heating system was faulty or she would like further assistance to understand how to operate it efficiently, it could arrange for an engineer to visit.
9. It was sorry to hear that the representative had debts that were causing her and her mother distress. It explained that its Better Days programme was there to support its customers with money worries, and she could find information on its website or by calling its customer service centre.
10. This letter was its final response to the complaint and referred her to this Service if she wished to take her complaint further.
On 23 August 2020 the resident sent a letter to the landlord’s CEO and another member of the landlord’s staff saying that:
1. The landlord had been sent a letter from the resident’s GP saying that because of her lung condition she could not live in a property with storage heaters. The representative said she was attaching a copy of the letter.
2. Because of the resident’s lung condition, she needed to live in a property with a lift.
3. The landlord had not offered the resident any properties with lifts.
4. The heating at the property was unaffordable.
On 1 September 2020 the landlord sent the representative an email concerning her letter to the CEO saying that:
1. The representative had now provided seven further locations in which she would consider for a management move. The landlord did not have properties in two of the areas and had none available in the other locations.
2. Under normal circumstances its policy only required it to offer one property as a management move. However, it had offered four management moves, although it recognised one was in an area the resident was unable to consider and the others offered did not have a balcony and/or lift. Although lifts and balconies are not considered in line with its policy after its discussions it had agreed that only properties with these should be offered to the resident. Therefore, a further two offers have been authorised.
3. It was unable to state how long it would take for properties to become available.
4. The requirement for a lift and a balcony would also reduce the properties it could offer and was likely to increase the time for one to become available.
5. The resident could look to move through the local authority or via a mutual exchange.
6. It had reviewed all the evidence the representative had provided concerning the heating and was unable to confirm a £23 a day spend.
7. It had offered to send an engineer to check the heating system, however the representative had refused this option.
8. That this letter was its final response to the complaint and if she wished to pursue the complaint further, she should contact this Service.
On 17 November 2020 the landlord sent the resident a letter saying that during the week commencing 23 November 2020 work would be undertaken on the external wall and several assessments would be carried out by the fire brigade. The letter had number to call if a resident had any questions. At 8:15 pm the same day the representative sent an email to the landlord’s CEO, another member of staff and a further landlord email address, saying that her mother had spent a long time trying to speak to the landlord on the telephone as she had many questions about its letter. She had been told that someone would call her back, but no one had. Her mother wanted the following questions answered: was scaffolding going to be put up, was the work to the back or front of the property and was work being carried out or assessments being made.
On 18 November 2020 the resident spoke with the landlord and, according to the landlord, during the call mentioned a number of times that the situation with the property affected her mental health and that she felt anxious. Following the call the landlord’s member of staff raised a safeguarding concern to its tenancy services team.
On 19 November 2020 the landlord telephoned the resident and said that it was calling following a concern raised by a member of staff regarding her mental health due to comments made during the telephone call the previous day.
On 20 November 2020 the landlord telephoned the representative and answered her questions about the work to be carried out at the property.
On 23 November 2020 the landlord spoke to the resident to discuss a contact plan that the landlord had put in place. The landlord proposed that the resident liaise directly with a particular member of staff regarding complaints and concerns but all repairs, emergency issues and initial requests for information were to be directed to its customer service centre. Following the telephone call the representative sent an email to the landlord saying that the contact plan was not needed and would not be signed by the resident.
On 24 November 2020 the landlord wrote to the resident and the representative saying it was responding to her email of 17 November 2020 as a complaint. In its letter the landlord said that:
1. It understood that the complaint was they were unhappy with the content of the letter from the landlord sated 17 November 2020 as it was not clear and that when they tried to contact the landlord no one could provide them with the answers. They were also unhappy regarding the call from the landlord on 19 November 2020.
2. It should have provided them with the answers to their questions regarding the work at the property sooner than it did.
3. During the telephone call on 18 November 2020 the resident had mentioned a number of times that the situation was affecting her mental health.
4. It had a duty of care to support its residents and its member of staff had raised a safeguarding concern in accordance with its safeguarding policy. The concern had been sent to its tenancy services team and a member of staff had called the resident on 19 November 2021. The call was to see if there was anything the landlord could do to support the resident and it apologised if the resident had felt that it had been questioning her mental health as this had not been its intention.
5. The contact plan it had put in place was to support them and ensure they got the answers they required in the most efficient way.
The landlord sent a further letter to the resident and the representative on 27 November 2020 saying that:
1. It understood their frustration at not being able to obtain answers about the work to be carried during the week commencing 23 November 2020. This had led to the representative emailing numerous members of the landlord’s staff to try and get the answers. It would not expect the representative to have to do this and it recognised the distress it had caused.
2. It apologised again if the call made to the resident by the landlord on 19 November 2021 had been upsetting. The member of staff who spoke to the resident on 18 November 2020 wasn’t trained to deal with safeguarding concerns and in accordance with its policy had passed on her concerns to its tenancy services team to try and assist the resident.
3. It referred to the representative again raising concerns about the affordability of the heating. It said that following the representative’s letter on 23 August 2020 it had once again investigated this and was advised that the heaters were working correctly. However, the resident had been using the boost option which would cost more, and the landlord had again shown the resident how to use the system correctly. It had informed her in its previous responses to the complaint how to contact this Service if she was still dissatisfied.
4. It would like to continue with the contact plan to ensure the resident and representative got the right support when they needed it.
5. It noted that the representative had asked to only communicate by letter, and it would send communication directly to the resident by letter. It would therefore no longer be responding directly to emails from the representative.
6. It would continue to look for a suitable property for them to move to, however as previously advised it could not specify how long this would take.
7. If she remained dissatisfied in relation to her complaints, she should raise the issues with this Service.
This Service has not seen copies of the communication between the resident/representative and the landlord between 27 November 2020 and 27 January 2021. On 27 January 2021 the landlord wrote a letter to the resident headed “Final warning letter”. It the letter the landlord said that:
1. Since October 2018 the resident had raised 13 formal complaints. Each complaint had been investigated, reviewed and the findings communicated to the resident. Each time the landlord had provided details of how the resident could escalate the complaint to this Service.
2. It recognised that she and the representative had felt that they needed to email numerous people within the landlord. However, she had been advised that this led to confusion as to who was dealing with matters and she had therefore been asked to follow a communication plan, which she had refused to sign.
3. Her refusal to accept complaint findings, refer the matters to this Service and agree to the contact plan were contrary to what was deemed acceptable behaviour under the tenancy agreement.
4. It repeated the terms of the contact plan and added that any contact to multiple parties at the landlord would be considered a nuisance and harassment.
5. Reminded her of the provisions of the tenancy agreement concerning acceptable behaviour (see paragraph 2 above).
6. Failure to take account of this warning might result in legal enforcement being taken.
7. An account marker would be in force for 12 months.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

The landlord’s handling of the resident’s management move

In dealing with the management move the landlord:
1. Offered the resident at least three properties.
2. Subsequently agreed to authorise two further property offers of properties with balconies and lifts.
3. Searched for suitable properties in numerous locations.
4. Provided advice to the representative about applying for a move via mutual exchange or via the local authority.
This Service has not seen a copy of the letter from the resident’s GP concerning her lung condition, nor has it seen evidence as to when the landlord was first sent this letter. It is not for this Service to determine what properties are medically suitable for a resident, nor is it qualified to do so. However, it is noted that the landlord has agreed to the representative’s request that the resident only be offered properties with a lift and a balcony.
Under the terms of its management move procedure (see paragraph 4 above) the landlord was under no obligation to provide numerous property offers, nor to offer properties with exactly the same facilities as a resident’s current property. The landlord’s actions set out in the previous two paragraphs therefore demonstrated its appropriate handling of the resident’s management move and there is no evidence of service failure.

The landlord’s response to the resident’s concerns about the cost of heating at the property

It is not for this Service to assess whether the storage heaters in the resident’s property were working correctly, nor is it qualified to do so.
In response to the resident’s concerns about the cost of heating the landlord:
1. Inspected the heaters in October 2019 and January 2020 and demonstrated to the resident how to use the settings correctly.
2. Following the resident’s formal complaint offered for its engineers to inspect the heaters again.
3. Sometime following the resident’s letter dated 23 August 2020 sent its engineers to again inspect the heaters. Having found that the resident had been using the boost option the engineer had again shown the resident how to use the system correctly.
4. Had considered the resident’s evidence concerning the heating cost but had been unable to confirm the representative’s claim that the heating was costing £23 a day.
5. Provided information to the representative about its Better Days programme to support its customers with money worries.
The landlord’s actions in the previous paragraph were reasonable and demonstrated that it took a resolution focused approach in trying to establish the reasons for the resident’s electricity costs and there is no evidence of service failure.

The landlord’s response to the resident’s concerns about a safeguarding matter being raised

During the course of this investigation the landlord has informed this Service that due to the sensitive nature of its safeguarding forms and information, these would not be something it would be able to share with this Service. The Ombudsman has therefore not seen a copy of the safeguarding referral made on 18 November 2020 or notes of the telephone call that day between the landlord and the resident.
However, according to the contents of the landlord’s letter to the resident dated 24 November 2020, the resident mentioned a number of times during the telephone call on 18 November 2020 that the situation with the property affected her mental health and that she felt anxious.
Having been made aware of the resident’s anxiety and mental health concerns the member of staff who spoke to the resident on 18 November 2020 acted in accordance with the provisions of the landlord’s safeguarding policy (see paragraph 5 above) in raising a safeguarding concern. The member of staff would have had reason to suspect or could answer ‘yes’ to the question; “Am I worried about this persons safety or wellbeing?”.
Therefore, the landlord acted appropriately and in accordance with its policy obligations in raising a safeguarding concern and there is no evidence of service failure.

The landlord’s response to the resident’s concerns about a contact restriction

The landlord’s letter dated 27 January 2021 was sent after the resident’s complaints had exhausted the landlord’s complaints process and as such does not form part of this investigation but has been included to provide background.
As set out in paragraph 3 above the provisions of the landlord’s complaints policy say that it is unacceptable for anyone making a complaint to communicate with it in an inappropriate way or refuse to accept the decisions it takes in line with the policy. Actions that the landlord can take include the introduction of a communication plan setting our appropriate and agreed communication guidelines.
The landlord acted appropriately and in accordance with the provisions of the tenancy agreement and its complaints policy in introducing the contact plan as:
1. The representative continued to raise issues about complaints after the landlord had issued its final response to the complaints and advised her to refer the complaints to this Service.
2. The representative had sent emails to numerous members of staff at the landlord about her complaints, including the CEO, and the contact plan would ensure her concerns were forwarded to the correct member of staff, be dealt with efficiently and ensure that they got the right support when they needed it.
There is therefore no evidence of service failure in relation to this aspect of the resident’s complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s complaints about the landlord’s:
1. Handling of the resident’s management move.
2. Response to the resident’s concerns about the cost of heating at the property.
3. Response to the resident’s concerns about a safeguarding matter being raised.
4. Response to the resident’s concerns about a contact restriction.

Reasons

The landlord made offers of at least three properties to the resident, authorised the offer of two further properties with la lift and balcony and provided advice to the representative about applying for a move via mutual exchange or via the local authority.
The landlord acted reasonably in trying to establish the reasons for the resident’s electricity costs.
The landlord acted appropriately and in accordance with its policy obligations in raising a safeguarding concern.
The landlord acted appropriately and in accordance with the provisions of the tenancy agreement and its complaints policy in introducing the contact plan.