Peabody Trust (202234093)

REPORT

COMPLAINT 202234093

Peabody Trust

15 March 2024

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 handling of the resident’s request for a higher banding for medical reasons.
2. The landlord’s complaint handling.
This Service has also considered the landlord’s record keeping.

Background

The landlord was unable to provide a copy of the resident’s tenancy agreement. However, it advised this Service that the resident has been an assured tenant of the property since 21 October 2019. The property is a one-bedroom, ground floor flat. The landlord’s records show that the resident is vulnerable due to a diagnosis of multiple sclerosis and depression.
Information has been provided regarding activity that happened more than 6 months prior to the date of the stage 1 complaint. Any reference to these events is for reference purposes and context only and has not otherwise been considered, apart from a recommendation below.
On 28 November 2018 the landlord responded to the resident’s request for a higher banding on the housing waiting list. It did not award a higher banding for medical reasons because the assessor said that the resident’s current situation was “tolerable if not ideal on medical grounds”. The letter said that the resident had a right to appeal the decision if he thought it was wrong. The deadline for receipt of an appeal was 17 December 2018. The landlord said that the appeal would be reviewed by a different medical advisor employed by the independent medical assessor. It said that there would be no further right of appeal.
On 8 December 2018 the resident appealed the decision. He said that when he suffered a relapse, he relied on a wheelchair and could not move from room to room to access the toilet or kitchen because the doorways in the flat were not wide enough.
The resident enclosed an occupational therapist report which confirmed that he was diagnosed with multiple sclerosis which caused “fluctuating functional capacity with periods of flare ups and remission”. It said that the property was unsuitable due to a step up at the front door, restricted internal turning space, an inaccessible kitchen, and stepped access into the shower cubicle and communal rear patio. It went on to say that multiple sclerosis is a degenerative neurological condition and the resident needed accommodation suitable for a wheelchair user.
The landlord wrote to the resident on 10 December 2018. It declined the medical banding award because the resident had “intermittent wheelchair use only”. The quote from the medical assessor was identical to the one in the letter dated 28 November 2018. The letter said that the resident had the right to appeal the decision with a deadline of 31 December 2018. The letter was signed by the same person that wrote the letter dated 28 November 2018.
On 18 June 2020 the adult social care team wrote to the landlord to ask if the resident was on the waiting list for a move. The landlord responded on 19 June 2020. It confirmed that the resident was registered and had been awarded band 1 for high medical priority.
The resident contacted this Service in November 2022. This Service contacted the landlord on 18 November 2022 and logged multiple complaints, on behalf of the resident due to his vulnerabilities. This complaint was one of these and was about “an application for medical priority on the rehousing waiting list”. This Service told the landlord that a written stage 1 complaint response for each complaint should be sent to the resident by 2 December 2022.
The landlord acknowledged the complaint on 23 November 2022 and responded on 1 December 2022. The landlord said that the resident’s medical assessment had been sent to its independent medical advisors for assessment and he would be contacted when a response was received. It said that this was the final response to his stage 1 complaint but to contact it if he felt his complaint had not been answered.
The resident emailed the landlord on 1 December 2022 and told the landlord that he had already been awarded band 1 for medical need. The landlord emailed him back and said that it was pleased to hear that the “matter was now complete”. The resident immediately responded to say that he was not satisfied that the matter was complete. He said that he could not deal with the strain the landlord was putting on him and he would take it further and would contact this Service again.
In an internal email dated 12 December 2022, a member of staff asked if the email sent to the resident on 1 December 2022 was a stage 1 response because it was not in the correct format. This Service had requested a copy of it and they didn’t know whether to send it or not.
The landlord sent another stage 1 complaint response on 21 December 2022. It apologised for its error when it advised that the medical assessment had been sent to the medical advisor when the resident had already been given band 1 for high medical priority. It said that staff had been reminded of the importance of maintaining clear and accurate records. £200 compensation was offered comprising of £100 for time and trouble, £50 for poor complaint handling and £50 for a missed appointment.
The resident responded on the same day. He refused the offer of compensation and said that his mental and physical health had suffered and that still nothing had been done. He said that he would continue to escalate the issue with this Service.
The landlord acknowledged the request to escalate the complaint to stage 2 of its process on 4 January 2023 and said that it aimed to respond in 20 working days.
The landlord emailed the resident on 1 February 2023 to say that it needed an additional 10 working days to respond which would be on or before 15 February 2023. The landlord emailed again on 15 February 2023 to say that a response would now be sent when the complaint handler was back off leave the following week.
The resident emailed the landlord on 23 February 2023 to chase the stage 2 complaint response. The landlord responded to say that it would respond that week.
The landlord responded to the stage 2 complaint on 26 February 2023, it explained that it would respond to the other complaints raised separately and not within this response. It also explained that it could not consider actions that had taken place years in the past because the timeframe covered by its complaints process was 6 months prior to the complaint. It apologised for the confusion and delay regarding the medical banding allocation and for the delay with the stage 2 response. It said that £50 had been offered for a missed appointment at stage 1 of the complaints process which was incorrect and an apology was offered for this. The renewed offer of compensation was £350 comprising of £100 for time, trouble and inconvenience and £250 for poor complaint handling.
The resident emailed the landlord on 8 March 2023. He said that he had not been put on the medical priority list for health needs “because the paperwork was missing or something” and as a result he was not able to bid on the properties he was entitled to.

Assessment and findings

Scope of investigation

The landlord’s handling of the resident’s request for a higher banding for medical reasons.

Paragraph 42(c) of the of the Scheme says the Ombudsman may not consider complaints which, in the Ombudsman’s opinion were 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 matter arising. This part of the complaint is therefore outside jurisdiction because the issue arose more than 6 months before the complaint was made.
Consideration has been made, however, to whether the application currently has a higher banding for medical reasons and if the resident can now bid on suitable properties.
The landlord’s transfer policy says that it will arrange for medical applications to be independently assessed where it believes that the applicant may fall within the health and disability band. It also says that it will award a health and disability priority to an applicant whose household needs to move due to a medical condition which will cause permanent damage or disability if they do not move, and which will not, or is significantly less likely to, cause permanent damage or disability if they do move. The banding awarded for health and disability need is band B1.
The landlord did not award a higher banding for medical reasons in 2018, and there is evidence that the appeal request was not handled effectively. However, there is evidence that band B1 was in place in 2020 when the social worker asked about it. As part of this investigation the landlord has provided evidence that shows that the resident is currently awarded band B1 for medical reasons and that the start date for the banding was the date of the application which was 25 October 2018. Therefore, the resident is currently awarded a higher banding for health and disability need and this has been backdated as far as possible.

The landlord’s complaint handling

The landlord’s complaints procedure in place at the time said that complaints responses would include:
1. Confirmation of the complaint stage
2. The outcome of the complaint.
3. The reasons for any decision.
4. An apology if appropriate.
5. The findings of the investigation addressing all points raised.
6. Recognition of anything that went wrong with an explanation as to why.
7. Details and breakdown of compensation awarded.
8. Details of any outstanding actions to resolve the complaint including timescales.
9. Steps the customer can take to escalate their complaint if they are still dissatisfied.
The procedure also said that a stage 2 complaint would be responded to within 20 days from the date it was escalated. If this was not possible an email should be sent to explain why this was the case with a new date, this should not exceed a further 10 days without good reason. If an extension beyond 10 days was required this should be agreed by both parties.
The landlord’s complaints policy said that complaints would not be investigated if the issue giving rise to the complaint happened more than 6 months previously.
The landlord responded to the stage 1 complaint within the required timeframe but did not include most of the information that it said it would within its complaint’s procedure. It did not contact the resident for clarification about the exact nature of the complaint and therefore did not provide an answer to the issue that was being raised. It also told the resident the wrong information because it said that the medical banding had not yet been awarded, when it had. This led to the vulnerable resident becoming more frustrated which was apparent when he told the landlord that he could “not deal with the strain it was putting on him”.
Although the resident told the landlord he was dissatisfied with the response it did not escalate the complaint to stage 2 of its process. This was a failure by the landlord which led to the resident taking time and trouble to contact this Service instead. When this Service asked the landlord for a copy of the stage 1 complaint response it realised that the response was incomplete and issued another one. This caused the resident further detriment because it delayed the process, left the resident with unanswered questions and ultimately delayed access to an investigation by this Service.
Again, the landlord did not check with the resident exactly what his complaint was about. It was clear from his response to the initial stage 1 response that the resident knew that he had already been awarded band B1 for medical reasons and therefore it was apparent that there was more to the complaint. The landlord missed an opportunity to contact the resident to find out what this was. This lack of communication meant that the second stage 1 complaint response also did not address the core issue. The landlord could have taken this opportunity to advise the resident that it could not investigate complaints about events that happened more than 6 months previously. This cost the resident further time and trouble and distress and inconvenience because he had to escalate the complaint again.
The landlord acknowledged the request to escalate the complaint to stage 2 after 8 working days and took 45 working days to respond in full. Although the landlord contacted the resident to advise him that the response was going to take longer than 20 working days it then failed to meet the new target response time. The extended deadline was also not agreed with the resident. This delay and failure to follow procedure caused the resident further distress and inconvenience because he contacted the landlord again. This also delayed the residents access to this Service further.
The stage 2 response was nearly 3 pages long but did not address the resident’s complaint fully. It mentioned that it could not investigate complaints that had occurred more than 6 months previously, however it was unclear exactly which complaint it was referring to. The landlord missed another opportunity to speak to the resident to explain what it could do and what was being covered by this complaint. This led to further time and trouble being taken by the resident to contact the landlord and this service again.
Considering the above failures, there has been maladministration by the landlord in its handling of the resident’s complaint.

The landlord’s record keeping.

The landlord was unable to provide a copy of the resident’s tenancy agreement when requested as part of this investigation. The data retention schedule for housing associations, published by the National Housing Federation says that tenancy agreements should be retained until 6 years after the end of the tenancy.
The landlord told this Service that the tenancy start date was 21 October 2019 and this date was confirmed on notes from its’ systems. There is evidence that the resident applied for a move from the property prior to 28 November 2018 because the landlord wrote to the resident at the property on that date. Therefore, the tenancy start date recorded by the landlord must be incorrect. This is a record keeping failure on the landlord’s part because not only will the landlord need the tenancy agreement for a variety of purposes in the future but the error on its system also calls into question the accuracy of the landlords’ records overall.
There was an issue with the complaint’s handler accessing information during the stage 1 investigation into this complaint. They had to rely on a third party to obtain this. There was an error with the information provided because the complaint handler was told that band B1 was still being assessed by the medical assessor when in fact it had already been awarded.
Considering the above there has been service failure in the landlord’s record keeping.

Determination

In accordance with paragraph 42(c) of the scheme the landlord’s handling of the resident’s request for a higher banding due to medical reasons was outside the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s complaint handling.
In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s record keeping.

Orders

Within 28 days of the date of this report the landlord must provide evidence that it has complied with the following orders:
Pay the resident directly a total of £550 in compensation. Any compensation already paid should be deducted from this amount. Compensation is broken down as follows:
1. £100 for distress and inconvenience.
2. £150 for time and trouble.
3. £200 for poor complaint handling
4. £100 for poor record keeping.
A senior member of staff to apologise to the resident in writing for the poor complaint handling.
A senior member of staff to ensure that a review of the database is conducted to make every effort to recover the tenancy agreement and to ensure that the correct tenancy start date is recorded.

Recommendations

A senior officer to review the housing application for this resident to ensure that everything possible is being done to support him to move to a more suitable property. This is to ensure that his rights under the Human Rights Act 1998 have been considered. Suggestions for this include:
1. Assigning a named member of staff to liaise with him and other relevant parties to make sure that the following has been considered:
  1. Application to the local authority housing waiting list as well as the landlords waiting list to maximise the number of properties available for the resident to bid on.
  2. Assistance with bidding to ensure that no opportunities are missed and to make sure that the resident is not overlooked when he bids on suitable properties.
  3. Ensuring that the resident is registered for mutual exchanges, and being a named contact to assist him with the process if he finds something suitable.
  4. Consideration of a ‘direct match’ into a suitable property and liaison with the local authority to ask for them to consider similar, perhaps on a reciprocal basis.
  5. Consideration of other properties that may not be suitable in the shorter term but could be adapted to meet the resident’s needs.