Hackney Council (202205379)

REPORT

COMPLAINT 202205379

Hackney Council

27 July 2023

Our approach

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

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

The complaint

1. The complaint is about the landlord’s handling of the resident’s request for repairs to a toilet seat.

Background

2. The resident is a secure tenant of the landlord. The resident lives in a two-bedroom, ground floor property. The resident complained about the landlord’s handling of replacing the toilet seat previously and that was investigated under case 202114761. In that case we found the landlord responsible for service failure because:
   1. The landlord did not get back to the resident when the repair was reported;
   2. The landlord had previously made the decision to repair the seat; and
   3. The landlord failed to consider if the toilet seat was adapted which contributed to the delay.
3. The resident states that the landlord only temporarily repaired the toilet seat previously and it was not an effective lasting repair. He reported that the seat became damaged again and that the landlord was responsible to repair it. He stated that an occupational therapist had commissioned a specialist toilet seat following an assessment. The landlord said the repair was outside of its policy and was the resident’s responsibility to replace. In addition, the landlord stated that the toilet itself was commissioned by the occupational therapy assessment, but the seat was of a standard design.
4. The resident complained on 21 January 2022. He was dissatisfied that the landlord stated it was not responsible for the replacement of the toilet seat. The resident was seeking a new seat and compensation of £10 per day for the delays. The landlord issued its stage 1 complaint response on 2 February 2022. It did not uphold the complaint. It said it was not liable for fitting standard toilet seats.
5. The resident remained dissatisfied and escalated his complaint to stage 2 of the complaint process on 2 February 2022. He maintained that the toilet seat was not a standard design as it was adapted, and that the landlord was responsible for it. He also said the landlord had set a precedent by repairing the toilet seat twice previously. The landlord had previously agreed it had set a precedent in its response to the previous complaint.
6. Additionally, the resident felt that the complaint response had not considered his vulnerabilities and that the toilet seat previously had been of a poor quality. The landlord responded on 28 February 2022 and did not uphold the complaint. It said that it had no liability for installing or repairing toilet seats and that whilst it had done so previously, it was not obligated to do so moving forward. The landlord also stated that the toilet seat was of a standard design which could be purchased at most hardware shops.
7. The landlord did complete the repair was completed on 5 July 2022. The resident remained dissatisfied with the delays to the repair and escalated his complaint to the Ombudsman on 10 August 2022 seeking compensation for the delays.

Assessment and findings

8. Under the tenancy terms, the landlord is responsible for repairing and keeping in proper working order the sanitary conveniences in the property. This would include the toilet. The resident is responsible for the small jobs around the home. In most, but not all, cases the resident would be responsible for repairing and replacing a toilet seat.
9. The landlord would be responsible where the seat was such that it required a special degree of skill to remove and replace it. Alternatively, a landlord would also be responsible where the seat was adapted as part of a resident’s required adaptations. The question in this case is whether the seat is a standard type, in which case the resident would be responsible, or alternatively a specialist or adapted type.
10. Importantly, the landlord did previously replace the seat on the basis that it was an adaptation. It is the resident’s position that the landlord failed to carry out the repair fully and only installed a poor quality ‘temporary’ seat. Conversely, the landlord stated that the seat fitted was a standard style. It said the repair was final and lasting.
11. An occupational therapist’s report from 16 August 2017, states that the resident required a standard height toilet at 1.4 feet from floor to seat. The landlord’s adaptations and occupational therapist manager also concluded the seat was a standard seat and there was no evidence of a need for an adapted seat. It appears from the photographic evidence reviewed by this Service that the toilet seat is standard seat. There is no evidence from the resident to demonstrate that he requires a therapeutic seat. On the balance of probabilities, it is likely that the seat is not adapted or specialist and therefore, the landlord would not be responsible to repair or replace it.
12. Overall, given that the landlord had no legal responsibility to make repairs to, or reinstall the toilet seat; the Ombudsman cannot find the landlord at fault for declining to complete the works. Given that it has subsequently chosen to undertake the repair on several occasions, more than its legal obligations, means the resident has been placed in a better position than he would have been in had the landlord set out the strict position. Social landlords sometimes undertake repairs that they are not responsible for out of goodwill. That does not mean that landlords are always bound to complete repairs for which they are not responsible on every occasion. In this case, the landlord’s decision to replace the toilet seat does not, in the Ombudsman view, bind it to keep repairing and replacing it. If the resident requires an adapted seat, he should obtain an updated occupational therapist’s report to substantiate this.
13. The landlord has not, however, managed the resident’s expectations in this case. It has disputed it is responsible for the works each time – but subsequently gone ahead and completed the works. That is likely to lead the resident to believe the landlord was responsible and that he had to stand resolute on this each time for the repair to be completed. This has led to a level of distrust by the resident towards the landlord. For this reason, the landlord is responsible for service failure in its handling of repair to the toilet seat.

Determination

14. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s requests for repairs to a toilet seat. This is primarily due to creating the expectation that the landlord would complete the repairs and causing the resident to feel he had to raise complaints to have the toilet seat replaced.

Orders

15. The landlord must, within 28 days of the date of this report:
    1. pay the resident £50 compensation; and
    2. assess whether the resident needs an adapted toilet or help the resident to obtain an updated occupational therapist’s report.