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Sandwell Metropolitan Borough Council (202011133)

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REPORT

COMPLAINT 202011133

Sandwell Metropolitan Borough Council

23 December 2021


Our approach

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

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

The complaint

  1. This complaint is about:

a.     The landlord’s response to the residents’ reports of persistent damp and mould issues at the property.

b.     The residents’ allegation a disclaimer document was fraudulently amended by a member of the landlord’s staff.

c.      The landlord’s handling of the residents’ application to be permanently rehoused.

d.     The landlord’s handling of the residents’ move to temporary accommodation through a decant process.

e.     The level of communication the residents received from the landlord in response to various enquiries.

f.        The landlord’s handling of incorrect information that it gave to the residents about the duration of their rehousing.

g.     The landlord’s complaint handling in respect of the above issues.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 39 of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

a.     The landlord’s response to the resident’s reports of persistent damp and mould

b.     The residents’ allegation of fraud

c.      The landlord’s handling of the residents’ application to be permanently rehoused

d.     The landlord’s handling of the residents’ move to temporary accommodation through a decant process.

  1. The Ombudsman can use its inquisitorial role to shape the focus of a complaint. It also has the discretion to include complaint issues which been sufficiently evidenced to allow a fair assessment to be made. However, paragraph 39(a) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “are made prior to having exhausted a member’s complaints procedure”.
  2. There are a number of reasons behind this. For example, landlords need to be given a fair opportunity to investigate and respond to any issues accordingly. Further, a landlord’s own investigation and final decision form the starting point of an assessment by the Ombudsman. The scope of this assessment is therefore limited to issues that have either completed the landlord’s internal complaints procedure or are supported by sufficient evidence to make a fair assessment.
  3. On 16 December 2021, during a phone call, the landlord confirmed the resident’s complaint about damp and mould had not been investigated at the second stage of its internal complaints procedure. Since evidence previously given by the landlord supports its statement, this aspect of the residents’ complaint is outside the scope of this assessment.
  4. From around 12 April 2021 the residents raised concerns about information they were given concerning allocations under the landlord’s decant process. These later included further concerns around the suitability of the alternative accommodation offered, which were based on specification or cost of rent grounds. No evidence has been seen to show these issues have been subjected to a formal investigation by the landlord, or that it has detailed its position on these matters to the residents in writing. Given the above, this aspect of the complaint is also outside the scope of this assessment.
  5. Paragraph 39(m) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “fall properly within the jurisdiction of another ombudsman, regulator, or complaint handling body.”
  6. This Service is unable to establish whether fraud has occurred since this is a criminal matter that falls outside of both the Ombudsman’s remit, and the landlord’s complaints procedure. The procedure document, which can be found online, shows the allegation should be handled by its separate Anti-Fraud or Whistle Blowing procedures in the first instance. Further, the Ombudsman is unable to order a landlord to take disciplinary action against a member of its staff. This Service is therefore an inappropriate means to investigate the residents’ allegation.
  7. The Housing Ombudsman Service can investigate complaints relating to a local authority’s activities as a landlord. The residents’ complaint about the landlord’s handling of their application to be permanently rehoused is not an issue the Housing Ombudsman Service can investigate. This is because the Local Government and Social Care Ombudsman (LGSCO) usually investigates complaints about applications for re-housing dealt with by a local authority. In this case, the landlord is the residents’ local authority and they have confirmed this issue has been raised with the LGSCO.

Background and summary of events

Background

  1. The residents are assured tenants, and the tenancy began in 2013. The property is a three-bedroom semidetached house constructed around 1930.
  2. The residents’ concerns have been raised in the context of persistent mould and damp problems at the property. The landlord told the Ombudsman they first reported repairs related to these issues in 2015. Its internal correspondence confirms flooring at the property needed to be removed to find the source of the problem. However, the works would be disruptive, and an estimated completion timescale could not be given.
  3. The residents are a family of five with three children. One of the children has a motor disability. Several members of the family have vulnerabilities relating to their physical and mental health, which they say are being aggravated by conditions in the property. They have provided medical documents to support their position.
  4. The residents are seeking a permanent move to a suitable property, which they feel the landlord has promised. The landlord is seeking to rehouse the residents temporarily through a decant. It has confirmed they will be given the opportunity to ask to stay in the decant accommodation once repairs to the property are complete. 
  5. The landlord’s tenancy agreement handbook confirms that where a resident’s property needs to be empty for major repair works, the landlord will offer them suitable alternative accommodation while the works are carried out. Elsewhere, its Housing Allocations Policy confirms direct offers of accommodation are appropriate for residents who require temporary accommodation during major works, for example where a property is not fit for occupation. Both documents can be found online.
  6. The landlord has given a timeline of its contact with the residents between 21 January and 10 March 2021. It details the nature of the residents’ enquiries and the landlord’s response. It shows the parties were in regular contact every few days apart from a three-week period, between 3 and 24 February 2021, when two enquires from the residents went unanswered.
  7. The landlord operates a two stage complaints policy. Its relevant policy document can be found online. It shows that, after the landlord has issued a stage one response, residents can request to escalate a complaint to the second stage of its process within 28 working days.

Summary of events

  1. On 28 January 2021 the landlord issued a stage one complaint response in connection with the service it had provided during damp and mould repair works. The main points were:

a.     Despite completing extensive remedial works, an inspection on 18 January 2021 had confirmed the presence of damp and mould in six rooms at the property.

b.     Following an internal discussion, the landlord had concluded the residents “may be better served by securing a new home rather continue in temporary accommodation”. The landlord would help the residents find a new home in their local area.

c.      The residents’ concerns about a disclaimer document, which they alleged had been fraudulently amended by a member of the landlord’s staff, had been investigated at the time in line with the landlord’s policies and procedures.

d.     The residents could request a stage two investigation if they were unhappy with the landlord’s response.

  1. On 12 February 2021 the landlord’s Insurance Claims Team emailed the residents in relation to their recently submitted claim. The email said the team did not have jurisdiction over matters relating to rent reductions and the issue had been referred internally as a complaint. This information suggests the residents were seeking a reduction as a result of issues arising during the landlord’s mould and damp repair works.
  2. The landlord’s timeline shows it had a discussion with the residents about a direct offer of accommodation on 3 March 2021.
  3. On 9 March 2021 the landlord advised the Ombudsman it had been trying to resolve the damp issue. It said its previous letter to the residents had suggested they seek a permanent move given 12 months had passed and the floor needed to be removed again to finally resolve the problem. It said the residents understood this was the case but did not feel they were being supported in finding alternative accommodation. The update was prompted following a request by the Ombudsman to clarify whether the complaint had completed its internal complaints procedure.
  4. The residents exchanged emails with the landlord at a senior level on 10 March 2021. They initially raised concerns about a lack of contact from the landlord, being given incorrect information about the bidding process for permanent housing allocations, and their application being incorrectly treated as a standard rehousing case. This prompted the landlord to respond it was satisfied all reasonable steps were being taken to support them in their move. It also said allegations its staff had lied about the bidding process should be put in writing so they could be investigated as a formal complaint.
  5. The residents replied in detail the same day. They confirmed they had received one direct offer of a property, but it was unsuitable for their medical and family needs. Further, although they had been placed on a bidding list, they had been incorrectly prioritised despite providing supporting medical documents. They also said their experience of the online bidding system did not match the information they were given. When they queried it, they were given conflicting information, which supported their understanding of the process.
  6. The landlord’s internal emails between 11 and 12 March 2021 show the residents’ repairs complaint had been “logged and closed” awaiting investigation at stage two. They said this was because the landlord was awaiting further instructions from the Ombudsman. Since it did not cover the issues raised in the email exchange, a new case was opened to address the landlord’s communication, along with delays in processing the residents’ medical documents.
  7. The landlord issued its stage one complaint response, in respect of the new issues, on 24 March 2021. The main points were:

a.     Overall, based on an internal timeline of communications, the landlord had responded to the residents in a timely manner. However, it was sorry that there were two occasions, 3 and 17 February 2021, when this had not been the case.

b.     During a conversation on 4 March 2021 the landlord explained its obligation was to rehouse the residents temporarily. While it understood they felt the landlord’s Repairs Team had promised them a permanent move, in its stage one response from 28 January 2021, this was outside of its policy. As a result, the residents’ request for the landlord to facilitate a permanent move would have to be decided at a senior level.

c.      The landlord confirmed the residents had previously provided medical information but could not recall the content. While the existing decant priority was appropriate for the residents’ circumstances, new information given during the conversation would form part of its discussion at senior level.

d.     Following an internal review, the landlord had contacted the residents the following day. It confirmed they had been allocated a higher priority banding to reflect their medical circumstances, and the amendment was made to assist their application for a permanent home. This was while they were waiting for a direct offer through the temporary decant process.

e.     The landlord had taken the step of providing the residents with temporary and permanent rehousing options due to their circumstances, and because they were given incorrect information. However, while it was sorry the residents had been advised incorrectly, its preference would be for them to accept a direct offer and move temporarily through the decant process.

  1. On 12 April 2021 the residents advised the landlord they had not been given a response to their rent reduction complaint. They also said they had been given incorrect information about how direct offers were allocated, which had come to light following a discussion with the landlord’s senior leadership.  The landlord replied these issues were not considered as part of its previous investigation, so their email had been forwarded internally with a view to raising a separate complaint.
  2. The landlord’s internal correspondence between 13 and 15 April 2021 confirms it was uncertain whether to raise the issues as a new complaint, or if they should be included in its current investigation, which it understood would ultimately be assessed by the Ombudsman. This was on this basis the Ombudsman would consider whether the circumstances warranted compensation.
  3. The landlord issued its stage two response on 15 April 2021.It said:

a.     The issue of alleged fraud had been discussed with the residents on several occasions but the landlord’s position, that the matter had been dealt with appropriately, had not changed.

b.     Following a review of the complaint, it had not found a reason to change the findings set out in its response on 24 March 2021. This was because its previous reply was detailed and comprehensive. Further, there was a limited supply of family accommodation available, and a number of families had similar or higher levels of priority to the residents.

  1. The residents emailed the landlord on 19 April 2021. They said their initial complaint concerned incorrect information they received about the bidding process. They were therefore unsure why extra details had been included in its response. However, they now had additional concerns around the suitability of the offers they had received given:

a.     They were advised they were entitled to three reasonable offers, but the two previous properties offered were unreasonable for their circumstances.

b.     They were advised properties with inadequate bedroom sizes would not be counted as reasonable offers.

c.      They were advised if the rent was unaffordable then the offer would not be counted.

  1. Internal correspondence from 20 April 2021 shows the landlord had advised the residents it would not be offering a rent reduction. In a separate email to the residents, it said any other matters of concern should be shared with the Ombudsman so they could be considered as a whole.
  2. On 27 April 2021 the landlord issued the residents an update letter about their rehousing. It confirmed they had declined two direct offers since January 2021. It said, although the landlord would continue to support them in obtaining a further offer, its previous offers had been made in accordance with its Housing Allocations Policy. They were therefore deemed suitable options for the size of the residents’ family.

Assessment and findings

  1. It is recognised that the situation has been distressing for the residents and the evidence confirms it has been ongoing for a considerable length of time. Further, it is accepted they have numerous concerns about the landlord’s actions that pre and postdate the timeline set out above. They also confirmed, during a phone call on 16 December 2021, that they are still living in the property. While this assessment is unable to address all the resident’s concerns, matters that do fall within its scope have been given thorough consideration with a view to identifying any relevant actions required to progress the dispute.
  2. It is noted the above timeline, along with the landlord’s own timeline and correspondence, suggests there was a delay in processing the resident’s medical evidence. This is because they show the evidence was provided on 27 January 2021, but the residents’ banding was not amended until around 5 March 2021. However, no evidence has been seen to show the situation had any bearing on offers being made through the decant process. It is also noted that the first direct offer was made around 3 March 2021, which was just over a month after the landlord suggested the residents needed to be permanently rehomed. As a result, this complaint point relates to the landlord’s handling of the residents’ application to be permanently rehoused, and it falls outside the scope of this assessment.

Level of communication received

  1. In relation to the level of communication the residents received, between 21 January and 10 March 2021, the landlord’s contact timeline confirms the overall level of communication received was reasonable. This is considering the volume and regularity of contact along with response times. However, separate enquiries made on 3 and 17 February went unanswered. Since the next contact took place on 24 February 2021, this represents a delay of three weeks before the residents could discuss their enquiry with the landlord.
  2. The timeline describes the first enquiry as a general request for information. The second is described as relating to the bidding process which, again, is not something the Ombudsman can consider. However, it is reasonable to conclude that responding to a general information request is an activity undertaken while the landlord is acting in its capacity as a landlord. This aspect is therefore within the scope of the assessment.
  3. Having searched the landlord’s policy and procedure documents, no evidence has been seen to show it is obliged to respond to general enquires within a given timeframe. Nevertheless, the above identified delay represents an unreasonable timescale given the circumstances. Since the landlord has acknowledged and apologised for the issue, and no evidence has been seen to show the delay had a detrimental impact on the residents, the apology offered represents reasonable redress on the part of the landlord.

Landlord’s handling of incorrect information

  1. The landlord has also apologised for the incorrect information, in respect of a permanent move, which was given in its initial stage one response. While this issue was not the subject of the residents’ formal complaint, it is clear this was a matter of concern and the landlord addressed it formally in its response on 24 March 2021. It therefore falls within the scope of this assessment. The tenancy agreement handbook confirms moves resulting from extensive works are temporary in nature. This is supported by the information in the allocations policy, which shows the direct offer process is appropriate in the residents’ circumstances.
  2. Given the wording of its initial stage one response, it is understandable why the residents feel they were promised a permanent move. However, the evidence shows the landlord identified its error and the correct information was given accordingly. It is recognised the landlord has attempted to accommodate their preference for a permanent move, following its wrong information, through a range of given options. For example, the landlord has facilitated the residents’ application for permanent rehousing. They have also been told there will be an opportunity to request to stay in the decant accommodation, if they would prefer not to return to the property following completion of the works.
  3. Based on the information seen, no significant delay in the resident’s rehousing, through the decant process, occurred following the above incorrect information. Because no other adverse impacts on the residents have been identified, the actions taken by the landlord to remedy the situation represent reasonable redress on its part.

Complaint handling

  1. This assessment has considered the landlord’s handling of the residents’ concerns in conjunction with both the above timeline and the Housing Ombudsman’s Complaint Handling Code. These sources provide sufficient information to assess the issue. The “Complaints procedure” section of the Code confirms where complaints are made to a landlord they should be acknowledged and logged at stage one of its complaints procedure. Where complaints are not resolved to a resident’s satisfaction, at stage one, they should be progressed to the next stage in accordance with the landlord’s procedure. A full record of the complaint should be kept including the outcomes at each stage of the process, along with details of any reviews.
  2. The Ombudsman has not seen evidence that the residents made a formal request for their damp and mould complaint to be escalated to the second stage of the landlord’s complaints procedure. However, it is clear from the above timeline that their request for a rent reduction in February 2021 likely relates to that complaint. Further, from the request itself, it is reasonable to conclude they disagreed with the landlord’s resolution at stage one on the basis they had not been offered proportionate redress given their experience. It is noted that the request was made within the escalation timescale set out in the landlord’s procedure.
  3. From the above information, the landlord could have reasonably inferred their damp and mould complaint needed to be escalated. Nevertheless, disregarding its inability to recognise the residents’ were unhappy with its resolution, the landlord told the residents their reduction request had been referred internally as a complaint. On that basis a new complaint should have been raised to address the residents’ concerns. However, the landlord’s internal correspondence from around 14 April 2021 confirmed the landlord had not treated the matter as a complaint, as promised, or even responded to the residents about the issue. This represents a period of around two months where no appropriate action was taken to progress the dispute.
  4. Between 12 and 20 April 2021 the resident’s began to raise a number of new complaint issues. It is noted the landlord was unsure how best to address these issues. Further, its intentions seem to have been to allow the residents to pursue an independent assessment through the Ombudsman as soon as possible. However, handing these issues to the Ombudsman without investigating or responding formally, as a complaint, is contrary to the requirements of the Code as outlined above. The landlord could have improved its decision making by referring to both the Code and the timeline of events.
  5. This is because the timeline confirms it had issued a stage one response around 19 days prior to the residents raising additional concerns. On that basis, given the above-mentioned requirements of the Code, it could have concluded that their new concerns needed to be logged and formally addressed at stage one before further action any could be taken, depending on the residents’ response to its investigation. As mentioned, the Ombudsman uses the landlord’s own investigation, evidence reviewed and outcome rationale as the starting point for its own investigation.
  6. Given the above, this assessment found service failure in respect of the landlord’s complaint handling. While a delay of around two months is evident from the timeline, it is reasonable to conclude the residents have also experienced distress and inconvenience given what happened. This is because they have numerous complaint points, many of which relate to a seemingly severe damp and mould case, which, based on the evidence seen, remain either unaddressed or unresolved and which has delayed this Service being able to investigate these serious issues.

Determination (decision)

  1. In accordance with paragraph 55 of the Housing Ombudsman Scheme, the landlord has offered reasonable redress in respect of the level of communication the residents received in response to various enquiries.
  2. In accordance with paragraph 55 of the Housing Ombudsman Scheme, the landlord has offered reasonable redress in relation to its handling of incorrect information that it gave to the residents about the duration of their rehousing.
  3. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s complaint handling.

Reasons

  1. The landlord has apologised for the occasions where the level of communication it provided the residents was unreasonable. No evidence has been seen to show the residents were disproportionately impacted by the situation, so this was appropriate redress given the circumstances.
  2. The landlord apologised for giving the residents incorrect information that it would permanently rehouse them. It clarified the correct information and gave a range of options to try and accommodate their preference for a permanent move. The evidence seen shows the incorrect information had a limited impact on the residents, so the steps taken were appropriate given the circumstances.
  3. The landlord failed to escalate the residents’ mould and damp complaint to the second stage of its process. This was despite the resident’s seeking a rent reduction shortly after the stage one response was issued and the mould and damp being ongoing and unresolved. From the resident’s request, it could have reasonably concluded they were dissatisfied with its resolution on the basis proportionate redress had not been offered.
  4. The above may not have mattered if the landlord had treated their concerns as a separate complaint in line with its correspondence to them. Instead, the evidence shows, it took no action for over two months until the matter was handed to the Ombudsman, along with a number of other new complaint points. This was without any investigation on the part of the landlord which has not given a formal position on the matter. This was contrary to the requirements of the Complaint Handling Code.
  5. The above identified delay has resulted from the landlord’s actions. However, it is reasonable to conclude the residents have also experienced distress due to the number of unaddressed or unresolved complaint points.

Orders and recommendations

Orders

  1. The Ombudsman orders the landlord to escalate the residents’ stage one damp and mould complaint to the second stage of its process within four weeks of the date of this report. The landlord needs to discuss the complaint with the residents beforehand to ensure it understands, and is in a position to address, all the outstanding issues prior to issuing its final response. If the landlord has already logged a separate complaint about the resident’s rent reduction request, it is most likely linked to the damp and mould case and needs to be considered in conjunction with it. 
  2. The Ombudsman orders the landlord to contact the residents and capture their complaint points relating to its handling of their temporary move through the decant process. Once captured, these concerns need to be logged and investigated as a separate complaint. This action is to be taken within four weeks of the date of this report.
  3. The Ombudsman orders the landlord to pay the residents £200 in compensation for the distress and inconvenience caused to the residents by the highlighted delays and failures in its complaint handling. This payment is to be made within four weeks of the date of this assessment.

Recommendations

  1. The landlord to use this case in conjunction with the Complaint Handling Code to provide staff training around ensuring it progresses stage one complaints where a resident is evidently dissatisfied and/or the issues remain unresolved.
  2. The landlord to confirm its intentions regarding the above recommendation within four weeks of the date of this report.