Royal Borough of Kensington and Chelsea (202125655)

REPORT

COMPLAINT 202125655

Royal Borough of Kensington and Chelsea

12 May 2023

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

1. The complaint is about the landlord’s handling of the resident’s:
   1. housing application;
   2. concerns about discrimination and less favourable treatment in applying its voids policy;
   3. request for reasonable adjustments to the voids policy; and
   4. the associated complaint.

Background

2. The resident is a secure tenant of the landlord, living in a second-floor maisonette. The resident has multiple health conditions, which the landlord is aware of and has previously facilitated access to an occupational therapy assessment to understand the resident’s health needs, as they relate to their housing.
3. The resident requested a move to a property that better met their health and disability needs. A property was identified and the resident first viewed it on 16 September 2020. Following this, and subsequent visits, the resident requested various works to the property, prior to agreeing to sign the tenancy. These works were not completed and ultimately the landlord withdrew the offer on 21 October 2020, and it was then allocated to another tenant. The resident felt that this process was discriminatory, as the works they had requested should have been considered as reasonable adjustments to take account of their health and disabilities.
4. The resident first raised a formal complaint on 6 January 2021 on the grounds that various works they requested as reasonable adjustments to the new property had been declined. The resident also stated that they had been given one hour to decide whether to accept the property on a “taken as seen” basis. The resident felt that this amounted to discrimination, particularly as the landlord had since completed some of these works for the new incoming tenant.
5. The landlord issued its stage one complaint response on 25 January 2021 and did not uphold the complaint. It stated that the property had been held for the resident for more than one month and that the works they requested were above the void lettable standard would not be approved. The resident remained dissatisfied and escalated their complaint to stage two of the landlord’s complaint procedure on 11 February 2021.
6. The landlord’s stage two response stated the landlord could not justify works more than the void lettable standard. Additionally, the property had been held for the resident for over a month to facilitate their decision and an inspection with a surveyor. The resident remained dissatisfied and escalated their complaint to stage three of the landlord’s complaint procedure on 29 March 2021. they sought an explanation of the landlord’s application of its policies, which the resident felt was discriminatory. The resident was also seeking “damages” for discrimination.
7. The landlord issued its stage three complaint response on 27 April 2021 and did not uphold the complaint. It said it could not identify any discrimination within its processes to date and that previous explanations had been provided as to why the works requested could not be completed.
8. The resident remained dissatisfied and escalated their complaint to the Ombudsman for investigation.

Assessment and findings

Jurisdiction

9. The Housing Ombudsman is not free to investigate every complaint referred to this Service. Our role is to only investigate complaints about housing management and not other statutory duties on councils relating to housing and rehousing. The landlord in this case is only required to be a member of the Housing Ombudsman Scheme in respect of its housing management activities relating to the provision or management of social housing.
10. Councils act in many different capacities. They are local education authorities, licencing authorities and, in accordance with Part 6 of the Housing Act 1996, local housing authorities responsible to nominate and allocate council housing in line with its allocations policy. This is not a housing management activity.
11. In accordance with paragraph 41(d) of the Housing Ombudsman Scheme, the Ombudsman cannot consider complaints in respect of a local authority’s functions which do not relate to their provision or management of social housing.
12. This means the Housing Ombudsman Service has no jurisdiction to investigate the resident’s complaint about the allocation of the property and the council’s decision not to make the offer of the second property. This is because the council was not acting as a landlord at that time.
13. Similarly, this Service is not able to make a legal declaration on whether the landlord breached the Equality Act 2010. Section 114(1) of the Act states it is for the courts to make this decision. Therefore, under paragraph 42(g) of the Scheme, this Service will not consider whether the landlord breached the Equality Act 2010, as it would be quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal, or procedure. Should the resident wish to pursue this aspect of the complaint, they would need to take independent legal advice on this matter.

Scope of investigation

14. This Service has investigated how the landlord handled the resident’s requests for reasonable adjustments, in accordance with its void policies and procedures and good practice.

The resident’s requests for reasonable adjustments

15. At the time of this complaint, the resident was housed in a property that was unsuitable for their needs, as it included multiple stairs which made moving around difficult. The landlord had previously arranged an assessment with the Health and Disability Team, who provided a report on the resident’s health conditions and the types of properties that would be better suited to their needs. This included recommendations for a two-bedroom property situated on the ground floor, or up to the fourth floor if it had a lift. Additionally, the report concluded that the resident should be considered a high priority for a property with fewer steps so they could access essential facilities in their home. The report noted that the landlord may need to provide “disability equipment” and/or “minor adaptations” within the property.
16. In view of these recommendations, the resident was offered a property, which they first visited on 16 September 2020. The resident advised the landlord the following day that they would accept the property if additional works were carried out, including:
    1. Re-tiling within the bathroom, for which the resident was prepared to purchase the tiles and have them fitted by the landlord.
    2. Installing an electrical point and water supply in the kitchen to allow for a dishwasher to be installed. The resident stated that having a dishwasher was essential due to health conditions which affected their hands and arms.
    3. Installing a cooker extraction system, which the resident stated was essential to prevent an accumulation of steam which would be detrimental to their respiratory conditions.
    4. Repairing large holes in the walls of the property to make it secure and watertight.
    5. Removing a section of the countertop in the kitchen to allow the resident to fit a full height fridge freezer, rather than under-counter appliances.
    6. The replacement of the window “latch stick” which was missing in one of the rooms.
17. The landlord’s lettable standard, in conjunction with its void and lettings policy and procedures, outline the processes it will follow in vacant properties to have them reallocated in a fair and timely way. This includes processes for carrying out basic works to bring the properties back to a lettable standard. This standard included the following, which were applicable in this complaint:
    1. Sufficient space for a washing machine with an appropriate hot and cold-water supply.
    2. A clean cooking point with fixtures ready for fitting a gas or electric cooker.
    3. Walls must be “sound, free from damp, graffiti, large cracks, loose plaster, bulges and holes.”
    4. The tiling in a bathroom must include two rows of tiles above a hand basin and three rows above a bath. These tiles must be clean, intact, and not loose or cracked.
    5. Any pre-fitted adaptations in the property for people with disabilities must be clean, secure, and working.
18. It is important to note that the lettable standard does not specifically include standards for dishwashers, cooker extraction systems or the accommodation of specific sizes of white goods within a kitchen or utility space. Therefore, ordinarily these would not be considered as part of the voids process.
19. The Equality Act 2010 outlines eight ‘protected characteristics’, including sex, disability, and race among others, and prohibits direct or indirect discrimination, victimisation, and harassment on any of these grounds. The Act also places a duty on organisations to make reasonable adjustments to ensure that people with a disability are not treated less favourably. Part 11 of the Act also created the ‘Public Sector Equality Duty’ which requires public bodies to have ‘due regard’ to equality and the elimination of any behaviours prohibited under the Act.
20. In considering the matter, the resident attended the property two further times, including once with a surveyor. On each occasion, the works had not been completed and the resident declined to sign to accept the property. Throughout October 2021 telephone calls and emails were exchanged discussing these works. On 21 October 2021, the landlord issued a response in writing stating that the property would be brought up to the void standard, but that the “additional works” had been denied. The landlord stated that it was not able to fund these works as they would be classed as home improvements for the resident to complete once they had moved into the property.
21. When considering the works requested and whether these should be considered as reasonable adjustments, the landlord relied on the professional medical opinion of the Health and Disability Team. It was reasonable for the landlord to rely on this report. The recommendations within the report do not make any specific reference to the resident requiring a dishwasher, an extractor fan or any specific style or height of fridge freezer. It is not clear why the tiles required would be a reasonable adjustment. For this reason, it was reasonable for the landlord to treat these as home improvements and not to consider these requests as reasonable adjustments.
22. The correct approach would have been to accept the property and have another occupational therapist review whether the adjustments requested were necessary. There is also evidence of the landlord attempting to arrange a further occupational health assessment in March 2021.
23. The resident also stated within their complaints that they felt the timescale they was given to consider the property was not sufficient or appropriate. In correspondence, the resident stated that they was given one hour or one day to consider the property. From the evidence seen by this Service, the first visit to the property took place on 16 September 2020 and the landlord withdrew its offer on 21 October 2020, meaning that the resident had 35 calendar days to consider the property.
24. The landlord complied with the timescales and procedure within its void letting policy save that it allowed more generous timescales for the resident. For these reasons, there has been no maladministration in the landlord’s handling of the resident’s requests for reasonable adjustments.
25. The resident has not presented evidence that the new residents of the property were offered the adjustments they requested.
26. In conclusion, there is no evidence that the landlord refused the changes because of the resident’s characteristics. It would be for the landlord to decide if and how to make reasonable adjustments – considering relevant advice from professionals. In this case, the occupational health assessment did not disclose the adjustments requested by the resident as necessary. In any event, as opposed to adapting the property, landlords may have the right to offer an alternative home. The resident could have accepted the property and requested a new occupational health assessment to confirm the adaptations they was requesting were necessary. The landlord allowed over a month for the resident to consider accepting the property and that was a fair adjustment to its policy.

Complaint handling

27. At the time of this complaint, the landlord operated a three-stage complaint handling procedure. The landlord committed to responding to complaints within 10 working days at stage one, 15 working days at stage two and 20 working days at stage three. In the intervening period, the Ombudsman published the Complaint Handling Code (the Code), available on our website, which now recommends a two-stage process, and it is noted that the landlord has since adopted this approach.
28. In the correspondence seen by this Service, the landlord maintained a clear process for managing the complaint through the three stages and responded to the stage one and stage three complaints within timescales. The stage two complaint response was issued two working days over timescale, however the landlord apologised for this in its response, and this was reasonable given the short delay.
29. The landlord fully responded to the resident’s complaints and clearly set out why it did not consider there was discrimination.
30. Overall, the complaint was well managed and progressed, with clear responses that met with the requirements of the Code and therefore there was no maladministration in the landlord’s handling of the complaint.

Determination

31. The Ombudsman has determined that:
    1. Under paragraph 41(d) of the Scheme, the Housing Ombudsman has no jurisdiction to investigate complaints about councils not exercising a landlord function. Therefore, the complaint about the landlord not offering the second property is not one this Service can investigate.
    2. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of the resident’s requests for reasonable adjustments. It relied on the occupational health therapists report which did not indicate the changes requested were necessary. Secondly, the resident could have accepted the property and asked for a further occupational health assessment. The landlord extended the timescales for the resident to accept or reject the property.
    3. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of the associated complaint.