Derby City Council (202300582)

REPORT

COMPLAINT 202300582

Derby Homes Limited

12 September 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 the resident’s:
1. Personal data and subject access request (SAR).
2. Concerns about the installation of a replacement kitchen at her property.
3. Request for an adaptation to her property.
4. Associated complaint.

Background

The resident is a secure tenant at the property. She lives at the property with her 3 children.
For the purpose of this report the Ombudsman will refer to the resident’s eldest child as ‘child A’, and her second child as ‘child B’.
The resident is diagnosed with Ehlers Danlos syndrome which affects her joints. Child B is diagnosed with Autistic Spectrum Disorder. Both child A and child B have extensive sensory processing difficulties. The landlord is aware of this.
The resident claims the landlord informed her it was unable to provide her with a paediatric occupational therapist to complete an assessment for an adaptation at the property. The resident has also stated that the landlord advised her that its adaptations team would accept a privately funded occupational therapist (OT) report from a suitably qualified professional.
On 8 February 2022 the resident obtained a private OT report from an independent consultant paediatric occupational therapist. She emailed this to the landlord on 9 February 2022.
This report explained that both child A and child B were highly intelligent but had significantly opposing sensory needs. These opposing needs led to both child A and child B becoming frequently aggressive towards one another. These incidents of aggressive behaviour had led to child A and child B injuring each other.
The privately obtained OT report recommended an essential adaptation that included an extension to the property. The extension was for a sensory room. This was to allow child B the required space for their safe, but intense movement. This was so they could regulate whilst not impacting child A, or other members of the family within the property.
On 18 March 2022 the landlord told the resident that in order for it to consider an adaptation of a sensory room at her property, she would need to make a referral to the local authority’s Children’s Services Department. This was so it could complete a children’s OT assessment. Once the referral was accepted, the resident would then be added to the waiting list for the assessment to be completed.
The landlord said that it obtained advice from its planning department. It said that the existing planning application for an extension at the property did not leave sufficient space for the required path access from the garden at the property.
The resident raised her dissatisfaction and questioned the landlord if it was reneging on its original advice. She asked to review its relevant policies. The resident said that she had not consented to the landlord making a referral or sharing her children’s private medical information with any third party.
On 10 October 2022 the resident asked the landlord to raise a formal complaint. She said the landlord should have raised her complaint in the spring of 2022. The resident said the landlord’s response had been ‘unjust’ in its handling of her request for an adaptation at the property. She also said the landlord had shared her data with the local authority’s complex needs services, which she had not consented to.

On 16 November 2022 the landlord provided its stage one complaint response. It apologised for failing to follow its correct processes in respect of how it manages its adaptations. It said that it could not move the matter forward because the resident was not consenting for it to make the referral for a children’s OT assessment to be completed. The resident was unhappy with the landlord’s response and requested the escalation of her complaint.
On 18 January 2023 the landlord provided its final response. It repeated its apology made within its stage one response. The landlord agreed to use the original privately obtained OT report to support its own OT assessment, which it still required its own occupational therapists to complete.
The resident remained dissatisfied with the landlord’s final response. She brought her complaint to the Ombudsman stating she wanted the property extension to be built in line with the private OT assessment. She also wanted compensation which considered the distress and inconvenience caused to her as a result of the landlord’s actions. This included that child B was no longer able to reside at the property in its current condition. She said there had also been disruption to the educational needs of her children due to the situation at home.
On 11 March 2024 the resident updated the Ombudsman that she had complained to the landlord at the end of 2023 about the installation of her replacement kitchen. She felt this was part of her complaint about adaptations within her property.

Assessment and findings

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42(a) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s [landlord’s] complaints procedure.
After carefully considering all the evidence, in accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the complaint about concerns by the resident about the installation of a replacement kitchen at her property, is outside of the Ombudsman’s jurisdiction.
This is because this complaint was not included in the resident’s complaints to the landlord, which have been through the landlord’s complaints procedure. The installation of the replacement kitchen referred to by the resident, relates to matters that occurred after the landlord provided its final response on 18 January 2023. Therefore, the landlord was not given the opportunity to provide its response to these matters during its 2-stage complaints process.
If the resident remains dissatisfied, she can make a new complaint to the landlord about this. If the landlord is then unable to resolve matters to her satisfaction through its complaints process, she may be able to refer the complaint to this service for investigation at that stage.
Paragraph 42(j) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which fall properly within the jurisdiction of another Ombudsman, regulator, or complaint handling body. After carefully considering all the evidence, in accordance with paragraph 42(j) of the Housing Ombudsman Scheme, the complaint about the landlord’s handling of the resident’s personal data and subject access request (SAR) is outside of the Ombudsman’s jurisdiction. Complaints about issues relating to access to data, requested as part of a SAR, are considered by the Information Commissioner’s Office (ICO). The Ombudsman has not been provided with any correspondence that the landlord has sign-posted the resident to this other complaint handling body. However, the Ombudsman advises the resident should they wish to pursue this aspect of their complaint, to contact the ICO.

Scope of Investigation

The Ombudsman understands that the resident and her family have undergone a traumatic incident. This incident has led to child B having to reside with a relative, a considerable distance away from the resident’s property. The Ombudsman understands this has caused the resident and her family significant distress and anxiety. This has been taken into consideration in our investigation. However, our assessment is limited to the landlord’s obligations and whether it followed these.
The Ombudsman can only investigate complaints about local authorities’ activities in their capacity as social landlords. Children’s services are available to all residents of a local authority, not just tenants. Therefore, this service is not directly related to the local authority’s role as a social landlord. Therefore this Ombudsman cannot consider any actions in this report taken by, or that relate to the local authorities Children’s Services Department. This includes in respect of the OT assessment process.

This is in line with paragraph 42(j) of the Scheme which states that we may not consider complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint handling body. If this is something the resident wishes to seek further, she is directed to the office for the Children’s Services Department to pursue this aspect of her complaint. If the resident remains unhappy once she has received a final response from the Children’s Services Department, she may be able to refer her complaint to the Local Government and Social Care Ombudsman (LGSCO). The LGSCO is able to investigate complaints about local authorities’ activities which do not directly relate to their role as social landlords.

The resident’s request for an adaptation to her property.

The landlord’s welfare adaptation policy states that any major works or adaptations require a referral from an occupational therapist and evidence of existing health conditions. It states that dependent on the complexity of the major adaptation, its timeframe to complete the works may exceed the usual 16 weeks.
The landlord has an agreed process for how a resident obtains a children’s occupational therapist as follows:
1. A referral is made by the landlord or resident to the local authority’s vulnerable children meeting (VCM) support team.
2. The VCM team will make the decision whether or not to accept a referral for a children’s OT assessment. If accepted this will be referred to a panel meeting for a screening assessment by a suitable professional.
3. The landlord’s children’s occupational therapist will carry out an assessment and make any recommendations for adaptations at the property.
The resident has said that the landlord told her on 3 separate occasions prior to February 2022, that it could not provide child A or child B with a children’s occupational therapist assessment. The resident has also said that the landlord’s adaptations team advised her that it would accept the findings of a privately funded OT report if it was from a suitably qualified professional. There is no documentary evidence to corroborate the resident’s assertion. As the landlord has disputed the resident’s assertion and the Ombudsman only relies upon documentary evidence when reaching a decision, the Ombudsman is unable to say with certainty that this was the case with the evidence at its disposal. Additionally there is evidence from email correspondence dated 19 June 2022 which confirms the resident had been told for the previous 12 months by NHS England that there were no children’s OT assessment for under 18 year old’s. This supports that there are insufficient grounds that the statements made were by the landlord.
The landlord should have made the referral as set out above in this report or completed the referral above to the VCM support team on behalf of the resident. This is evidence of poor communication. It also demonstrates a lack of understanding of its processes by the landlord’s staff.
On 8 March 2022 the landlord’s surveyor attended the resident’s property. The surveyor took measurements and assessed the space. The resident reported that the surveyor said the following to them:
1. The current approved planning application for an extension to the property would require a 45cm reduction to the build. This was to allow enough room for a path from the garden. The surveyor did not consider this to be an issue.
2. The landlord would forward its decision about the works onto its building and development team for which there was a 2-month waiting list.
This was an appropriate response by the landlord to carry out an assessment of the property, as well as in considering the planning application already in existence for the property. The Ombudsman acknowledges the landlord accepted a referral should have been made to the joint Derby City Council (DCC) Children’s Service and Derby Homes Weekly Vulnerable Children’s meeting with the councils OT service which was reiterated within its stage two response dated 18 January 2023. It was also identified within the stage two response that the resident had since withheld permission for the private OT assessment to be shared, as a result the referral was not made. However, this does not negate the landlord’s acceptance that a referral could have been made prior to the landlord’s surveyor’s attendance at the property, which in consideration of the circumstances added to the resident’s distress, given it would have seemed that the adaptations had been agreed
On 17 March 2022 the resident chased the landlord for an update following its survey at the property. On 18 March 2022 the landlord told the resident that she would need to make a referral for a children’s OT assessment in order for it to consider an adaptation of a sensory room to be added for child B. The information provided by the landlord was in line with its agreed process on how to obtain a children’s OT report. The landlord’s welfare policy states that major works or adaptations require a referral from an occupational therapist.
On 12 April 2022 the landlord confirmed that it had no policy, but a process in which it worked with its local authority’s children’s services team to access OT assessments and reports. It confirmed it would therefore need to complete its own OT report for child A and child B but would take into consideration all information provided by other professionals. The landlord offered to make the referral for the OT assessment on the resident’s behalf.
Considering the landlord already had the private OT report, it would have been better practice and in line with its welfare adaptions policy that a new OT report may not have been required. The landlord could have used its discretion to consider the findings of the private OT report, noting a summary of this as part of its referral and then subsequently explaining to the resident that its own children’s occupational therapists could communicate with the author of the private report for any further information it required. This approach could also have been considered when the resident refused consent for the sharing of the report at the joint meeting.
This is supported by the landlord’s stage two response which confirmed an entirely new assessment of the children’s needs would not be required, as this had already been completed within the private OT report. However, it was likely its own children’s occupational therapist would need to communicate with the author of the private OT report in relation to housing and architecture as it was confirmed by the author that she could not provide architectural plans.
Furthermore, this is supported by the landlord’s review of its adaptation policy, and email correspondence to the Ombudsman dated 1 May 2024, in which it stated it had rigidly stuck to the adaptations process by expecting the involvement of a Derby City Council OT. It also recognised that the application of the policy in this case could have been construed as contradictory as it was discussed with the Major Adaptations, New Builds and Extension (MANBE) Group prior to approval by a DCC OT and further that the policy was being applied selectively. It is a positive step that the landlord has decided to review the policy using learnings from this case, and as a result, confirmed the policy would be extended to allow private OT assessments and referrals to be accepted as a request for service.
It took 45 working days for the landlord to respond to the resident’s concerns about the need for a further OT report. Even taking into consideration speaking to different teams, this is an unacceptable delay for a reply to the resident. This is evidence of poor communication.
In its final response, the landlord said that the current waiting time was 8 months for an OT referral, but it would back date the resident’s referral to March 2022 if she consented to the referral being submitted. It said without the resident’s authority of the referral it could not move the matter forward. This was not correct because the landlord’s referral should have been backdated to February 2022, the date when the resident had provided the private OT report. In any event, 8 months had already passed by the time the landlord provided its final response. Therefore, the landlord should have already reviewed the private OT report at that point, subject to the resident providing her consent.
The Ombudsman is not commenting on the resident’s reasons for declining to allow the landlord to share her children’s medical information to the local authority’s children’s services department. However, the landlord’s explanation and reasons why it needed to provide it were an acceptable response.
The Ombudsman will make an order as part of this report, the landlord is to communicate with the paediatric occupational therapist who was the author of the privately funded OT report. Subject to the resident providing her written consent, the landlord would then be able to communicate with the councils OT to agree the scope of work. The landlord is to then explain its decision on whether it will carry out the adaptation of the sensory room at the resident’s property. The correspondence should include an explanation of the reasons for the decision.
The landlord offered the resident a specific point of contact (SPOC) at the landlord for the future handling of the adaptation at her property. This was a reasonable response by the landlord because it recognised the exacerbation it had caused to the resident in its poor communication. The Ombudsman will make a recommendation in respect of a SPOC for the resident as part of this report.
For the reasons described above the landlord makes a finding of maladministration for the landlord’s handling of the resident’s request for an adaptation to her property. This is because there was a considerable delay of 45 working days for the landlord to respond to the resident’s concerns about the requirement for a further OT report and given the seriousness of the circumstances, vulnerabilities and aggravating factors of the case, this was an unacceptable delay and a significant failing. The landlord did apologise for its failings in its complaint response, which was positive. However, the landlord’s response was not proportionate to the detriment caused to the resident. It failed to address the significant impact its errors had on the resident.
The landlord is ordered to pay the resident £400 in compensation. This is in line with the Ombudsman’s remedies guidance (published on our website) which sets out the Ombudsman’s approach to compensation. The Ombudsman has also considered in this award, the unique aggravating factors that the delays had on the resident, and her family who have significant vulnerabilities. These aggravating factors have increased the level of compensation so that the award reflects the distress and inconvenience suffered by the resident.
Examples of this level of compensation include where the landlord’s failures adversely affected the resident. Amounts in this range are also appropriate where the landlord has attempted to put things right, but its offer has failed to provide a proportionate offer of compensation, as in this case.

The associated complaint

The landlord’s complaints policy states that it defines a complaint as an expression of dissatisfaction, however made, about the standard of service, actions, or lack of action by the landlord, its own staff or those acting on its behalf, affecting an individual resident or group of residents.
The landlord has a 2-stage complaints process. It will provide a written response at stage one within 10 working days. It states it will provide a resident with an explanation if it requires more time to respond to a resident’s complaint. It states where an extension goes beyond 20 days, it will agree this with the resident. At stage 2 the landlord states it will provide its written response within 20 working days. It will inform a resident if it requires to extend its response at stage 2.
On 18 March 2022 the resident responded to an email from the landlord in which she demonstrated her dissatisfaction at the landlord’s decision to not accept the findings of her privately funded OT report. The Ombudsman has reviewed this correspondence and has concluded that the language used by the resident should have led to the landlord recording a stage one formal complaint. The landlord’s complaints policy states that a resident does not have to use the word ‘complaint’ for it to be treated as such. It was a clear expression of dissatisfaction of the landlord’s actions as set out above in what the landlord’s complaints policy defines as a complaint. This is evidence that the landlord’s staff demonstrated a lack of understanding of its complaints policy and processes. It meant the resident needed to raise the same complaint again in October 2022 and delayed her getting a response to her concerns. It is positive that the landlord apologised for not logging the complaint sooner in its final response. However, an apology is not sufficient to fully recognise the impact this error would have had on the resident. This has been considered when looking at further remedies, as detailed further below.
On 24 October 2022 the landlord said it needed to extend the time to respond to her complaint. It said it would respond by 4 November 2022. This was reasonable as sometimes landlords need further time to gather all the information to provide a full response to the resident’s complaint. This extension was in line with the Ombudsman’s Complaint Handling Code (the Code), which states that this extension should not be longer than a further 10 working days.
The landlord provided its final written response to the resident’s complaint 33 working days after she requested an escalation to stage 2 on 18 January 2023. This should have been provided within 20 working days, as per the landlord’s own complaints policy and the Code. Whilst this overall delay was not excessive, this further is evidence of poor communication and poor complaint handling. It was therefore appropriate that the landlord apologised for this delay in its final response.
For the reasons described in above in this report, the Ombudsman makes a finding of maladministration for the landlord’s handling of the resident’s complaint. The Ombudsman has considered its own remedies guidance (as set out above) and awards the resident £150 in compensation, for errors in the landlord’s handling of her complaint.

Determination (decision)

In accordance with paragraph 42(j) of the Scheme the Ombudsman has not investigated the complaint about the landlord’s handling of the resident’s personal data and subject access request (SAR). This is because it is not in the remit of the Housing Ombudsman to investigate this complaint.
In accordance with paragraph 42(a) of the Scheme, the Ombudsman has not investigated the complaint about concerns by the resident about the installation of a replacement kitchen at her property. This is because they have not yet exhausted the landlord’s complaint procedure.
In accordance with paragraph 52 of the Scheme:
1. There was maladministration in the landlord’s handling of the resident’s request for an adaptation to her property.
2. There was maladministration in the landlord’s handling of the associated complaint.

Orders and recommendations

Orders

The landlord is to apologise to the resident in writing within 28 days of the issue of this report. The apology is to be in line with this Service’s guidance that it acknowledges the maladministration, and expresses a sincere regret for its handling of:
1. The resident’s request for an adaptation to her property.
2. The associated complaint
The landlord is to pay the resident a compensation payment of £550 within 28 days of this report. The breakdown of this compensation is as follows:
1. £400 for the resident’s request for an adaptation to her property.
2. £150 for the associated complaint
The landlord is to conduct an internal review of its handling of the adaptation request and complaint handling in this report, to identify the reasons for the failings set out within this report, and what action it may need to take to avoid a recurrence of this in the future. It should provide this within 8 weeks of this report and should share the findings of this review with the Ombudsman and the resident.
The landlord is to carry out training to ensure that staff adhere to its policies relating to complaint handling and the application of its adaptations and welfare related adaptations procedures and processes. It should provide an update within 8 weeks of this report to the Ombudsman that this has been completed.
Within 8 weeks of this report, the landlord is to communicate with the paediatric occupational therapist who was the author of the privately funded OT report. Subject to the resident providing her written consent, the landlord would then be able to communicate with the councils OT to agree the scope of work. The landlord is to then write to the resident, copying in the Ombudsman, to explain its decision on whether it will carry out the adaptation of the sensory room at the resident’s property. The letter should include an explanation of the reasons for the decision.
The works must be completed within a reasonable time period, in line with the landlord’s published timescales, and in line with industry best practice.
Within 4 weeks of this report the landlord is to update the resident with the details of a specific point of contact (SPOC) at the landlord for communication in respect of her request for an adaptation to her property. The landlord should copy the Ombudsman into this correspondence as evidence that it has complied with this order.