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Transcript of Housing Ombudsman podcast, September 2021

Severe maladministration – insight from the Ombudsman’s caseworkers

Ric Blakeway, Housing Ombudsman:

Hi my name is Ric Blakeway.

Welcome to our second in a series of new, topical podcasts on our work.

For almost a year, we have been publishing reports on severe maladministration, or severe mal, where we have found the actions of the landlord to have been particularly poor or caused significant determent to the resident. So far we have published nine cases, the latest today. There is always significant interest in them and this podcast provides an opportunity to explore, with a number of casework colleagues, how we reach these decisions and what we have found.

As you may expect, I take a close interest in these cases and place a particular emphasis on the landlord demonstrating it has learnt from them to avoid something similar being repeated. I am pleased that a number of landlords have embraced this opportunity. By publishing these reports and sharing learning, I hope it gives an opportunity for the sector to reflect on whether their approach is strong enough to prevent similar failings.

I’ll now hand over to Dave Simmons, our sector development lead, to guide us through this important topic.

Dave Simmons, sector development lead:

For context it is important to explain that, when we formally investigate a case, we are not just focusing on what went wrong with a particular aspect (or aspects) of a landlord’s service.  We are equally as concerned with considering the extent to which a landlord has acknowledged any shortfalls in service and the actions it has taken to try and put things right.

No matter how serious the shortfalls in service may have been, if we find that a landlord has used its complaints procedure to good effect and has taken fair and proportionate steps to recognise and put right any mistakes, we will not take matters any further.

On the other hand, if we decide that a landlord has made poor use of its complaints procedure and has not adequately recognised any errors and the impact that these have had on a resident, we can make a finding of either service failure, maladministration or severe maladministration. This depends on the seriousness of what went wrong and the impact on the resident.

Severe mal findings are reserved for the most serious of cases. These often involve multiple failures in service over a prolonged period of time as well as significant delays and long periods of inaction on the part of a landlord. What also makes these cases stand apart is the high level of impact that the series of events has had on a resident, who may have been left living in a stressful situation, in poor conditions and sometimes without essential amenities.

Findings of severe mal are rare. To put this into context, in 2019/2020 we made a total of five findings of severe mal. Since the beginning of 2021, up to the point of writing this podcast, we have investigated and determined 1584 cases. We have found severe mal in four of them which is around 0.25% of all cases.

When we find fault with a landlord’s actions, we will make orders for the landlord to carry out certain actions that we think are proportionate to put things right. We may also make recommendations to help landlords improve their service which we strongly encourage them to implement. Given the seriousness of severe mal cases they often come with the highest levels of compensation that we award.

We are joined on this podcast by some of our Adjudicators, Jonathan Ball, Gill Lowden and Lydia Florence, who are going to provide a summary of cases in which they made a finding of severe mal. Our Adjudicators are responsible for undertaking formal investigations into cases that remain unresolved following completion of a landlord’s internal complaints procedure.

Firstly let’s talk to Gill Lowden about her case:

Gill Lowden, adjudicator:

Dave: Gill, what was your case about?

Gill: In this case, an 83-year-old resident complained about her faulty boiler and the landlord’s decision to cap her gas supply.

Dave: What happened?

Gill: In September 2017 the resident reported no heating or hot water. An engineer visited but couldn’t gain access and left a card. Six weeks later, the landlord forced entry to the property and capped the gas supply.

There was no evidence of further action by the landlord until September 2018 when

an engineer made an annual gas servicing visit and placed a ‘danger notice’ on the

boiler. The gas supply remained capped and there was no evidence of further action by the landlord.

 

In her complaint to us, the resident said her flat was very cold in winter and she’d had to wash using a kettle for hot water. She said a relative had sometimes paid for her to stay in hotels so she could be warm.

Dave:  And what did you find?

 

Gill: While the landlord may have found this case difficult due to problems accessing the property, its lack of action was extremely concerning. It left an elderly, potentially

vulnerable, resident in need of assistance. The lack of heating and hot water in the

property over an extensive period caused the resident severe distress and

inconvenience. There was no evidence the landlord had taken reasonable or fair action to bring an end to its resident living in a property without heating or hot water for almost three years.

 

As well as gas safety, the landlord also had an obligation to ensure it was complying with its repair obligations. The evidence didn’t explain why the gas was

capped, rather than a boiler repair carried out. Nor was there evidence to show what action it had taken after the gas had been capped, given it knew the resident was without heating and hot water.

 

Despite being aware she’d been without a boiler for almost a year when a gas engineer gained access to the property in 2018, there was no evidence the landlord made any attempt to investigate what repairs might be necessary. That was a missed opportunity to try to put matters right.

 

There was no evidence of the landlord attempting to visit the resident to try to resolve the matter or undertake checks into her welfare, only making contact when an annual gas inspection was due. Nor was there any evidence that it considered, or took, legal action to gain access to carry out gas servicing or repairs or that it had provided any alternative source of heating and hot water.

Dave:  You found severe mal.  What remedies did you order?

Gill:

  • To pay the resident £6,000 compensation for the distress and inconvenience caused and apologise.
  • To offer her alternative heating for the property.
  • To offer to provide her with a safe way to make hot food.
  • To demonstrate to the us that it had a robust plan in place to repair the boiler and reinstate the gas at the property.

 

I also made several recommendations including:

  • The landlord to review its “managing annual gas safety inspections” policy to ensure its approach to elderly and vulnerable residents is appropriate and that it has satisfactory oversight of properties with a capped gas supply.
  • Also for it to consider the learning from this complaint and identify where staff may benefit from additional training.

Dave Simmons:

Thanks Gill. Poor record keeping and sub-standard complaint handling are normally always contributory factors in our findings of severe mal and Gill’s case was no exception. The same applies to the case which Lydia is going to talk though next. Lydia, what was your case about?

Lydia Florence, adjudicator:

Lydia: In this case a resident complained about outstanding repairs following a leak from a flat above.

Dave: Tell us about the background to the case…

Events began in 2018 when a leak from the top floor flat caused flooding which resulted in the landlord temporarily moving the resident out. It installed dehumidifiers to dry out the moisture and removed the damaged laminate flooring.

Having moved back home, the resident made several attempts to contact the landlord’s repairs department to request repairs but was unable to get through. The resident was eventually advised by the landlord’s call centre that he could carry out the work himself. He completed the works himself and provided the landlord with receipts to the value of £2,296.85, primarily to cover replacement laminate flooring and tins of paint. He requested reimbursement but received no reply which prompted him to raise a formal complaint.

In response, the landlord acknowledged that an inspection in May 2018 had identified some works which had not been carried out. It also acknowledged that the resident had completed the work himself and advised that a decision about reimbursing him would be made shortly.

It required our intervention before the landlord contacted the resident again. This time it asked him to complete an insurance claim form which the resident did but heard nothing further for over two months.

We contacted the landlord on seven occasions during 2019 asking it to respond. No response was received until the end of 2019 when the landlord wrote to the resident stating that it would review his complaint within 15 working days. No response was provided until April 2020 following further intervention from us.

The landlord acknowledged its complaint handling had been poor and offered £100 compensation. It also denied that it advised the resident to carry out the work himself. As it did not retain telephone recordings dating back further than six months it was unable to look into this further. It also said that as the leak came from a leaseholder property, any insurance claim would be unlikely to succeed as it does not have responsibility for leasehold properties.

Dave: What were your conclusions in this case?

Lydia: The landlord took an excessively long time to respond to what was as relatively straightforward issue despite numerous requests. It failed to keep the resident updated and provided no reason or apology for these delays. It also provided no explanation for the absence of any inspection and action plan to complete any outstanding repairs following the leak.

These delays also meant the landlord lost the opportunity to consider its telephone records to establish whether the resident was advised to carry out the work himself.  The landlord’s position regarding responsibility for repairs and the replacement of the laminate flooring was not addressed and remained unclear. This investigation also highlighted some very poor record keeping and the fact that the landlord had no repairs policy.

Dave: you found severe mal – what orders did you make?

Lydia:

  • pay the resident £800 compensation for its failures (£200 for the failure to assess or carry out any repairs for a period of two months and £600 for the time and trouble the resident was put to in order to get any response from the landlord over a significant period of time)
  • provide training to staff in complaint handling.

We also recommended that the landlord:

  • produce a repairs policy to address responsibilities of the parties and to address timescales for repairs
  • produce a compensation policy to address how and when it will consider making financial redress to a complainant
  • report back to the us on any lessons learned from this case within six months of the date of this determination.

Dave Simmons:

Thanks Lydia. The final case we are going to examine involved us exercising our new powers to issues a Complaint Handling Failure Order. I will hand over to Jon Ball to explain. Tell us about this case Jon…

Jonathan Ball, Adjudicator:

Jon: This case related to the adapted bathroom of a disabled resident, who complained about the landlord’s response to multiple reports he had made about the shower unit. The resident was dissatisfied for a number of reasons, including the number of times he had been decanted from the property whilst the landlord completed repairs and expenses that he had received whilst away from his home. He also had concerns about the suitability of the adapted bathroom given his disability needs. The landlord’s final response to the resident did not address all of the issues raised by the resident during the complaints process, though it did award him compensation of £500 for distress.

The landlord was asked for specific information in relation to the issues to be investigated; it acknowledged, in discussion with us, the reasons why such information was necessary for a thorough investigation to take place, however it failed to produce the evidence and the investigation proceeded in its absence. We also issued the landlord with a complaint Handling Failure Order (CHFO) due to this failure.

The lack of evidence on the case meant that it was difficult to build a clear picture of what had actually taken place. It was decided that the landlord had been given ample opportunity, both during its complaints process, and during the evidence gathering stage of our process, to clarify and evidence its position in relation to the issues at hand. As such, where there was ambiguity or discrepancies between the landlord and resident’s timeline, an inference was made that the landlord had not disputed the resident’s version of events.

This contributed to a maladministration determination in relation to the bathroom issues, with findings that the landlord had, failed to carry out its repair obligations at the property, failed to complete risk assessments of temporary accommodation, not provided sufficient expenses to the resident whilst decanted from the property, failed to respond to his requests for reimbursement for damaged possessions and had not addressed his concerns about the overall suitability of the adapted bathroom.

From a complaints handling perspective, the CHFO was not the only issue identified. In addition, it was found that the landlord had delayed in progressing the case through its complaints process, failed to address issues that had been raised by the resident,  refused to escalate the case unreasonably and that its responses lacked clarity. This led to a determination of severe mal on this aspect of the complaint.

Dave: What orders did you make following your finding of severe mal?

Jon: The landlord was ordered to pay a total of £3,000 in compensation on the case, together with recommendations that it clarify its position in relation to the suitability of the adapted bathroom and that it review the failures identified and report back to us on its findings from this review.

Dave: Thank you Jon. Demonstrating learning from complaints is not only a requirement of the Complaint Handling Code but is also essential if landlords are going to restore trust and good relationships with their residents when things have gone wrong.

It is important to point out that overall, we have found that landlords have responded positively to our findings of severe mal. As well as taking ownership for the failures highlighted by our investigations, some have gone to considerable lengths to learn from any mistakes and to improve their services for residents as a result. This was highlighted in your case Jon.

Jon: The landlord’s response was positive. It apologised to both the resident and to us for its failures on the case, it agreed to comply in full with our findings and provided a detailed analysis of the reasons for its poor handling of the case, including the steps it had taken to ensure that similar issues would not take place in future. The landlord also clarified its position regarding the suitability of the accommodation, confirming that it would welcome the opportunity to assess the property against the resident’s needs in conjunction with the Local Authority’s Occupational Therapy team. It also said that, in the event that the property was deemed suitable for full adaptation, that it would finance any additional costs.

Dave:

Thanks Jon. Due to the extraordinary nature of our severe mal cases we report them to the regulator. In the interest of transparency and of sharing our insight from complaints we also publish all findings of severe mal on our website. We do this so that all landlords can learn from the importance lessons that such cases highlight. This is in keeping with our vision to improve housing services in the sector.

This brings us to the end of the podcast. Thank you for listening.