Clarion Housing Association Limited (202205488)

REPORT

COMPLAINT 202205488

Clarion Housing Association Limited

17 January 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 the landlord’s handling of:
1. Repairs to the toilet and bath in the resident’s property.
2. The tenancy renewal.
3. Placing the resident on a risk to staff register.
4. A subject access request (SAR) and data breach.
The Ombudsman has also considered the landlord’s complaint handling.

Jurisdiction

Paragraph 42(k) of the Scheme states that the Ombudsman will not investigate complaints which fall within the jurisdiction of another Ombudsman, regulator or complaint-handling body. Complaints concerning SARs fall properly within the jurisdiction of the Information Commissioner’s Office (ICO), which is best placed to investigate and determine whether the legislative requirements for a SAR have been met. For this reason, this complaint is outside the Ombudsman’s jurisdiction and is not considered further in this report. If the resident remains dissatisfied with the landlord’s handling of the SAR she may wish to contact the ICO in that regard.

The resident has also mentioned a data breach and how she now has “zero trust” in how the landlord stores data, but there is no evidence that she has raised this with the landlord as a formal complaint. Paragraph 42(a) of the Scheme says the Ombudsman may not consider complaints which are made prior to having exhausted a member’s complaints procedure. As a result, this issue has not been considered further by the Ombudsman. In any event, matters relating to data protection also fall within the remit of the ICO, so any concerns around the landlord breaching the GDPR should be directed to it.

Background

The resident’s assured tenancy ended on 19 March 2019, when it was converted to a periodic tenancy pending the signing of an assured shorthold tenancy. She lives in a 3 bedroom property with her children. The resident and her two eldest children are registered disabled. She contacted the landlord on 6 January 2020 to say she would not sign a new tenancy agreement until repairs had been carried out following an intermittent leak.
A landlord operative was due to attend on 9 January 2020 to discuss the tenancy renewal and the leak. The visit was cancelled as the landlord said it would ask if a surveyor could visit instead. This was because a notice to evict may be issued as the resident had not signed her new tenancy agreement and it wanted to “have taken all the steps possible to resolve the residents situation.”
However, an operative, rather than a surveyor, attended on 21 January 2020 to repair the bedroom light. The resident submits that he did not allow her sufficient time to get to the door so she approached the van outside. She said the operative was shouting and swearing, and when she spoke to him he said he had received bad news, apologised and would do the repair.
The operative was unable to repair the light as it was the resident’s own light fitting and circuitry had been altered by her uncle, so she would be responsible for repairs and maintenance. There was an incident where the resident submits the operative was aggressive and rude so she asked him to leave. She overheard him call the landlord and report that she had been shouting and swearing, so she then also called the landlord to give her account of events.
The operative completed a risk assessment after describing feeling at risk. The landlord has said that in all cases, the risk assessment is based on the experience of the operative. On 20 February 2020 the resident received a letter advising she had been put on the ‘risk to staff’ register. She responded the following day saying she found this “totally unjust, unwarranted and without substance.” She said being put on the register without thorough investigation was humiliating and she found it embarrassing when 2 workmen attend, as they “think they are visiting someone dangerous.”
The landlord resolved issues with the intermittent leak by July 2020, after it resumed a normal repair service following the easing of restrictions put in place in response to the COVID-19 pandemic.
On 24 May 2021 a job was raised as the resident reported that she had to put her hand down her upstairs toilet in order to make sure it had been flushed. The landlord said it attempted to speak to her on 26 May 2021 and left a message, but she said she received no calls. It also said it attempted to access the property a couple of times but no access was given, so it left a card for her to get back in touch to arrange a further appointment. In the absence of any further contact from her, the job was closed.
The landlord sent the resident an electronic copy of the tenancy agreement on 28 May 2021 and chased her multiple times for a response in June and July 2021, without success. As a result, on 26 July 2021, it issued a notice that it did not propose to grant another tenancy as contact attempts had been unsuccessful, and the resident failed to sign a new tenancy agreement or contact it to discuss issues. It gave 21 days to appeal and said if the final decision was to not grant another tenancy, it would give no less than 2 months written notice for her to vacate the property.
The resident said this correspondence caused her many sleepless nights. She called the landlord on 2 August 2021 and it was agreed a paper tenancy agreement would be sent as she struggled with computers. The landlord’s records show that she then contacted it on 4 occasions between 24 August and 16 September 2021 mentioning the outstanding repairs. She called on 25 August 2021 to say that she had still not received a paper copy of the tenancy agreement or her housing file, as requested, and she wanted to read through the terms of the tenancy agreement with her carer before signing.
On 28 September 2021 the resident said she had been instructed by a solicitor to not sign a new tenancy agreement whilst there were outstanding repairs. She then complained on 30 November 2021 about the outstanding repairs. She also complained about the landlord issuing its notice despite her contacting it to explain why she would not sign the tenancy agreement (until she received a paper copy and the repairs were completed). She said the landlord had not sent a paper copy when it said it would and it had put her on the ‘risk to staff’ register for something she did not do, without investigation.
In a call with the landlord on 8 December 2021 the resident submits that she was told her bath needed replacing as the enamel had come away and gone rusty. However, the landlord had no record of the resident being told this, and no repair had been raised for the bath.
The landlord raised a repairs job the following day to inspect the toilet and assess if repairs were required to the bath. It initially attended on 17 December 2021 and noted that, although there was damage to the bath enamel, it was not inside the bathing area and did not warrant replacement.
The resident ultimately signed a new assured shorthold tenancy in December 2021.
In the landlord’s stage 1 complaint response of 22 December 2021 it said:
1. An operative was due to attend to discuss the tenancy renewal but the resident was contacted on 8 January 2020 to advise the appointment had been cancelled.
2. Repairs [following the intermittent leak] were completed on 8 July 2020.
3. The toilet repair job was closed after the contractor could not contact the resident. However the job had been re-booked for 17 December 2021.
4. It was unable to send a paper copy of the tenancy agreement during the pandemic as no staff were working in the office so all correspondence was sent by email during. However a paper copy had been sent on 26 August 2021 via special delivery, which the resident had received.
5. It had addressed the ‘risk to staff’ register issue under a previous complaint reference and the resident had appealed.
6. It offered £25 in recognition of an administration error which meant a paper tenancy agreement was not sent on 2 August 2021 as agreed.
On 7 January 2022, the resident said she felt her complaint had been skimmed over and she did not understand how the landlord could threaten eviction over an unsigned tenancy agreement. She also said she was not notified of the toilet repair appointment, although the repair was completed on 11 January 2022.
The resident contacted the landlord on 21 March 2022 to query why some operatives attend on their own and others in pairs, but the landlord said it could not find anything on file to say that she was still on the ‘risk to staff’ register.
In its stage 2 response of 25 March 2022, the landlord said the resident had not been threatened with eviction, but was sent formal notice of its intention not to grant another tenancy in line with its policy, after contact attempts over 18 months had not been responded to. It said it was not procedure to send a letter confirming repair appointments and it had explained why a paper copy of the tenancy agreement had not been sent.
The resident has since confirmed that all repairs have been completed and the landlord has since replaced the bath, but the issues complained of have caused her significant distress and emotional upset and caused her mental health to deteriorate.

Assessment and findings

Handling of repairs to toilet and bath

With regard to the bath repairs, the first reference to this issue was during the resident’s call with the landlord on 8 December 2021. A job was raised to assess if the bath enamel repairs were required on 9 December 2021 and it was assessed on 17 December 2021. This timeframe is in line with the landlord’s policy and is not unreasonable. On inspection the landlord noted the damaged enamel but decided the bath did not warrant replacement. The repairs policy says all components must be safe and serviceable for day to day use by residents so the landlord’s decision was appropriate in the circumstances.
Whilst the bath was ultimately replaced some time after the end of the complaints process, there is nothing to suggest that the landlord’s assessment of the repair was flawed or incorrect at the time of the complaint. As a result, there is no evidence of a failure in service with respect to the bath repair.
With regard to the toilet repair, the landlord’s Repairs and Maintenance Policy says it aims for repairs to be carried out in a ‘timely and efficient manner’ and a non-emergency repair appointment should be offered within 28 calendar days of the repair being reported. The toilet repair was reported on 24 May 2021 and the repair logs show that a job was raised the same day, suggesting that it was rightly handled with a degree of urgency. However, whilst the landlord has indicated that it then made several attempts to progress this matter with the resident, it has not provided any evidence to demonstrate precisely how many attempts were made, when they were made, or by what means. It has also not evidenced when it attempted to access the property to complete the repair.
The Repairs and Maintenance Policy provided does not state the process the landlord should follow when it is unable to contact the resident or access the property to complete a repair job, so it is unclear whether it was appropriate for the landlord to close the job, or whether it should have informed the resident it had done so.
However, the landlord has acknowledged that the resident made 4 attempts to chase the toilet repair throughout August and September 2021, but there is no evidence that it took any action to progress the repair in response. This meant it missed opportunities to deal with the repair and caused unnecessary and avoidable delays, which would have been understandably frustrating for the resident and was a failing. Ultimately, the resident found it necessary to pursue this matter as a formal complaint on 30 November 2021, some 6 months after the issue had first been reported.
Following receipt of the formal complaint, it took the landlord a further 7 working days to raise a new repair job for the toilet. This was another failing and caused further delays to the resident. It then attended on 17 December 2021, within its policy timescales, and completed the toilet repairs on 11 January 2022, but this was 162 working days after the issue had originally been reported. These delays represent a failing by the landlord which left the resident feeling she had been treated “appallingly.”
Had the landlord raised a new repair for the toilet when the resident mentioned it in August 2021, it should have been repaired by September 2021. The landlord did not offer compensation in either its stage 1 or 2 complaint responses, so did not acknowledge its failings or the distress and inconvenience caused to the resident by the delays, or the time and trouble taken chasing the repairs. A finding of maladministration is made and compensation ordered accordingly.
The landlord’s Compensation Policy says it will consider compensation between £250 and £700 for “considerable failure but there may be no permanent impact on the resident.” This can include for “failure over a considerable period of time to act in accordance with policy. For example to address repairs.”
This Service’s remedies guidance (published on our website) sets out our approach to compensation. The guidance suggests that an award of £400 for distress and inconvenience may remedy cases where maladministration has been found and the impact on the resident is not considered to have been permanent. The landlord failed to take any action when the resident chased the repair up and the toilet was not repaired until January 2022, meaning the landlord is responsible for at least 3 months of avoidable delays. Having considered the landlord’s Compensation Policy and our guidance, a compensation payment of £400 is ordered to reflect the inconvenience of 3 months of a faulty toilet and having to put her hand down the toilet to flush it, plus time and trouble of chasing for the repair to be completed.

Handling of Tenancy Renewal

The landlord has not provided a copy of the resident’s initial tenancy agreement or its terms and conditions. Its End of Tenancy policy says, where it has been decided not to offer another tenancy the tenant will be served with a written ‘minded-to’ notice that states its intention not to grant another tenancy, the reason for that decision and advice about the notice. It says when a resident “fails to engage with staff, it will decide on appropriate action to try and enforce the tenancy conditions. This can include issuing a warning and serving notice to bring the tenancy to an end.”
It is unclear whether the landlord contacted the resident regarding the tenancy renewal between the cancelled appointment on 8 January 2020 and sending out an electronic copy to be e-signed in May 2021. It is also not clear from the evidence whether it issued a warning before sending the notice. This lack of information indicates poor record keeping by the landlord. Receiving the notice also caused the resident distress, and she began packing her belongings up as she was under the impression she was going to be evicted. Whilst the landlord does need a signed tenancy agreement, there were a number of failings relating to the tenancy agreement including:
1. Cancelling the operative appointment to discuss the tenancy renewal in January 2020 and not offering an alternative appointment/method of contact to discuss outstanding issues.
2. Not contacting the resident and making reasonable adjustments to send a paper copy at an earlier date.
3. Not sending a paper copy of the tenancy agreement when it said it would, causing the resident inconvenience by having to chase.
4. Not evidencing any contact attempts relating to the tenancy renewal between January 2020 and May 2021.
The landlord did not act unreasonably by sending the notice to the resident as it requires a signed tenancy agreement, and the Ombudsman notes it had tried to contact her on multiple occasions. This Service also notes that the landlord made an offer of £25 for failing to send a paper copy of the tenancy agreement when it said it would. It therefore made some attempt to put things right. Its Compensation Policy says it awards compensation for service failure between £50 and £250. Having considered that Policy alongside this Service’s own remedies guidance, £25 is insufficient to reflect the level of distress and inconvenience caused to the resident by the tenancy renewal issues. The Ombudsman therefore makes a finding of maladministration and orders £150 compensation to properly reflect the failings identified above.

Risk to staff register

Where there are conflicting accounts of what happened during an incident and a lack of independent evidence to support either account, the Ombudsman as an impartial arbiter cannot definitively determine what happened during the incident. This Service will, however, consider the landlord’s response to the accounts and assess whether its actions were reasonable and appropriate in all the circumstances of the case.
While taking action to manage unreasonable behaviour is appropriate, and indeed necessary to protect the landlord’s staff, clear timeframes of when such action is to be reviewed should be given. Placing the resident on the risk to staff register alerts employees to a potential risk which is good practice to prevent further risk to staff.
The landlord did not provide records or notes of the calls from its operative or the resident reporting the incident that lead to the resident being placed on the risk to staff register. It also did not provide a copy of the risk assessment the operative completed. The landlord submits that it “followed policy and procedure” but has not provided a copy of the relevant policy to this Service. It has also not provided any evidence that it considered the resident’s account of events before placing her on the ‘risk to staff’ register. In the Ombudsman’s opinion, it would be fairer if the decision was reviewed once an interview with the resident had taken place. The landlord has not provided any evidence it conducted an interview with the resident or provided a timeframe as to how long she would be on the register for, which is not reasonable.
The resident submits that having to wait for 2 operatives to be available to attend may have caused delays to repairs. There is no evidence that being on the register affected repairs, but the lack of communication regarding how long she would be on there and appeal details represent a failure here.
Having considered the Ombudsman’s Dispute Resolution Principles, our guidance on remedies and the landlord’s Compensation Policy, an amount of £150 compensation is considered appropriate for the distress and inconvenience caused by the landlord’s handling of placing the resident on the risk to staff register. It failed to consider her version of events, did not provide an update on whether she is still on the risk to staff register, or explain how long she would be on the register for. The Ombudsman also orders the landlord to provide clarification as to whether the resident is still on the register, and give a timeframe for this decision to be reviewed, if she is still on the register.

Complaint Handling

The landlord’s Complaint Policy states it operates a 2-stage complaint process. The version of its policy provided to the Ombudsman for this investigation did not include response timeframes for either stage. Section 5 of The Housing Ombudsman’s Complaint Handling Code (the Code), states the following regarding response timeframes:
1. Stage one decision – 10 working days of the complaint being logged.
2. Stage two response – 20 working days from the complaint being escalated.
The resident complained about being placed on the risk to staff register on 20 June 2020. The landlord sent its stage 1 response which the resident accepted on 21 July 2020, 22 working days later, 12 days over the recommended timeframe.
The resident complained about repairs, the tenancy renewal and the risk to staff register on 30 November 2021. The landlord issued its stage 1 response on 22 December 2021, 16 working days later and 6 days over the recommended timeframe.
It apologised for the delays in carrying out the repairs, but did not offer compensation in line with its policy, or an explanation why the repair job was not re-opened when the resident made it aware the repairs were still outstanding. This was a failing which meant the landlord did not take appropriate steps to resolve the substantive issue, through the operation of its complaints process, at the earliest opportunity.
Delays issuing the stage 1 response, but particularly the stage 2 response, were not reasonable as it delayed the resident’s access to this Service. The toilet repair was still outstanding when the landlord issued its stage 1 response, but it confirmed the date of the repair appointment. The resident has described feeling significantly distressed, and the delays issuing the response would have added to this and damaged the landlord/resident relationship.
Whilst the landlord sent an update dated 11 March 2022, apologising for the delay issuing its stage 2 response, it was not sent until 25 March 2022, 55 working days after the resident escalated the complaint. The letter gave details of another tenant, causing the resident to contact the landlord about a data breach. The correct letter was sent on 28 March 2022. The excessive delay issuing the stage 2 response represents another failing.
In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. The Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes, as well as our own guidance on remedies.
This Service has highlighted to the landlord that it is of concern that it has in place an ‘interim’ complaint policy that effectively doubles its timeframes for responding to complaints and has previously made recommendations in other investigations to update its policy. The policy was introduced in July 2022 and, according to the landlord’s website, remains in effect. This Service appreciates that the ‘interim’ policy was put in place after the landlord fell victim to a serious cyber-attack but over a year has passed and such a longstanding policy cannot be described as ‘interim’.
Further, the Ombudsman notes the landlord self-assessed against the Code in October 2022. The landlord self-assessment says it complies with the Code in relation to Code section 5.1, it must respond to a stage 1 complaint within 10 working days, and 5.13, it must respond to a stage 2 complaint within 20 working days. It says “this is defined in page 3 of our Interim Complaints Policy under ‘our procedure’ section.” However, the policy still says 20 working days for stage 1 and 40 working days for stage 2.
As there is currently consultation underway about possible changes to the Code following a recent change in legislation, an order has not been made for the landlord to review its Complaints Policy at this time. However, the non-compliance has been recorded and follow up may be made to address the issues of non-compliance.
The landlord did not appear to consider the resident’s mental health issues or communicate with her effectively when dealing with her complaint and there were significant delays in issuing its stage 2 response causing frustration, distress and inconvenience to the resident. The stage 2 response did not offer an apology for the length of time it had taken to issue, nor did it offer any compensation. The landlord’s compensation policy says it can offer compensation between £250 and £700 for failure over a significant period of time to act in accordance with policy. As such this Service finds maladministration and makes an order for £250 redress to be paid for complaint handling failures.

Determinations

In accordance with Paragraph 52 of the Scheme there was maladministration in respect of the landlord’s handling of:
1. The repairs to the toilet and bath.
2. Placing the resident on the risk to staff register.
3. The tenancy renewal.
4. The formal complaint.
In accordance with paragraph 42(k) of the Scheme, the resident’s complaint about a SAR and data breach by the landlord are outside of the Ombudsman’s jurisdiction.

Orders and recommendations

Within four weeks of the date of this report the landlord is ordered to:
1. Pay the resident £950 compensation made up of:
  1. £400 for its delays and handling of repairs to the toilet and bath.
  2. £150 compensation for its handling relating to the tenancy renewal. If the £25 previously offered to the resident for service failure has been offered, it can be deducted from this total.
  3. £150 compensation for its handling relating to the ‘risk to staff’ register.
  4. £250 for the impact on the resident caused by the landlord’s poor complaint handling.
2. Provide clarification as to whether the resident is still on the risk to staff register, and give a timeframe for this decision to be reviewed, if she is still on the register.