Midland Heart Limited (202212883)

REPORT

COMPLAINT 202212883

Midland Heart Limited

11 October 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

The complaint is about the landlord’s handling of:
1. shower replacement works;
2. graffiti and signage removal;
3. the resident’s request for a gate.
The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

Background

The resident holds an assured tenancy with the landlord which commenced in 2011. She lives alone at the property, a 2-bedroom bungalow, which is partially enclosed by a fence that divides it from an area of unregistered land. There is a communal car park to the side/rear of the property. The resident has a number of health conditions known to the landlord, including eczema, reduced hand functionality and limited mobility, and sometimes uses a wheelchair.
The tenancy agreement states that, for tenants occupying a house or bungalow, any gardens, paths, hedges and fences form part of the property. It goes on to set out the repair responsibilities of the landlord and tenant. The landlord is responsible for keeping in repair and proper working order installations for the supply of water and sanitation, including basins, sinks, baths and sanitary conveniences. The tenant is responsible for reporting to the landlord anything which is in disrepair (and is its responsibility), and for keeping boundary fences in good repair. Tenants also have the right to use the landlord’s complaints procedure.
The landlord’s website states that its target timeframes for repairs depend on its service status, which is categorised as green, amber or red using a traffic light system. When its service status is green, it will carry out emergency repairs within 24 hours and routine repairs within 20 working days. When its service status is amber, this increases to 48 hours and 25 working days, and when it is red, to 72 hours and 28 working days.
The landlord’s aids and adaptations policy refers to “alterations to make the home easier to live in so that the customer can enjoy more independence”. It divides adaptations into ‘minor’ (costing under £1,000) and ‘major’ (costing over £1,000). Minor adaptations include grabrails and banisters, whereas major adaptations include ramps and dropped kerbs. The policy states that minor adaptations may not necessitate an occupational therapy referral, provided the customer is eligible and permission is not required from any other agency, and such requests will be reviewed by the relevant contract manager. However, if there is a concern around a customer’s need for minor adaptations or their requirements are for major adaptations, they will be referred to occupational therapy for a full needs assessment.
According to the landlord’s website, where it cannot resolve an issue at ‘early resolution’ stage, it operates a 2-stage complaints process. It will acknowledge complaints within 5 working days, and will respond within 10 working days at stage 1 (‘formal investigation’) and within 20 working days at stage 2 (‘formal review’). Where these timescales are not possible, it will agree an appropriate extension with the complainant. Complaints referring to personal injury claims will be dealt with by its insurers and legal advisors. In dealing with complaints, it aims to reflect its values: being people focused, inclusive and professional.
The landlord uses a matrix in spreadsheet form to calculate compensation. A copy has been examined by the Ombudsman as part of this investigation. Among other things, the matrix indicates that the landlord will pay compensation for loss of essential services (such as loss of a room or an element of a room, like a shower), and service failure (as a result of delays or quality issues, or for upset and inconvenience). Service failure payments for delays and quality issues range from £35 to £70, whereas service failure payments for upset/inconvenience may be up to £100, depending on the level of customer impact. Room loss payments are calculated at a rate of £5 per full room per day (after 3 days).

Summary of events

On 6 May 2021 the resident reported issues with her shower losing heat and a burning smell coming from the shower unit. The landlord attended on 7 May 2021 and concluded that the shower could not be repaired. It installed a new shower on 13 May 2021 and showed the resident how to use it. However, the resident was unable to operate the new shower and had concerns about the installation. She reported this to the landlord, which inspected the installation and documented that the resident was unable to use the shower due to her disability. It therefore installed a ‘care shower’ on 14 May 2021.
On 18 May 2021 the resident expressed her dissatisfaction with the landlord’s response to her previous reports of graffiti and an “unwanted and unauthorised” sign attached to the public-facing side of her fence. She stated that she had received a voicemail from the landlord’s repair team in response to her complaint about the matter, and that she found this unacceptable. She was unhappy with the “half-hearted” efforts to remove the graffiti and did not feel it was appropriate to “wait for nature to take its course”. She told it she felt “fobbed off” and “ignored”. She asked for the matter to be reviewed, and for the area to be restored to its original condition. The landlord told her it would not remove the graffiti, and sought internal advice in relation to the sign.
On various dates in June 2021 the resident reported further issues with her shower, stating that she was unable to turn the temperature down and use cold water. The landlord attended but found no defect. On 15 June 2021 the resident made a complaint about the landlord’s handling of the shower issues, stating that:
1. When she first reported the loss of heat and burning smell coming from her shower, it was 7 days before the landlord attended. She was deprived of a shower for that length of time and struggled to manage.
2. After the landlord installed a new shower, its operative struggled to turn it on. She believed something had gone wrong with the installation. The shower base had not been sealed in to protect the cables inside from water, creating a risk of electrocution. It also wobbled when the power button was pressed. However, the landlord told her it was working fine and nothing was wrong.
3. When she tried to operate the shower, she too was unable to get it to turn on and she injured herself in the process.
4. The landlord had caused damage to a bathroom tile when removing the previous shower attachment. It also left a red wall plug exposed in another tile, and didn’t do anything to protect these tiles from water. This risked damage to the walls.
5. She had told the landlord’s operative to state in their notes that she was finding it difficult to use the shower. They agreed. After they left, she phoned the landlord and explained the issue. The call taker said the operative’s notes stated she “could use the shower fairly well” and they later hung up on her. She was appalled by this and called back. She told a different call taker what had happened and asked for the operative’s notes to be rechecked; the second call taker said there were no notes, and also disconnected the call. The resident felt the second call taker was lying to her and that the call takers’ behaviour was “rude, unprofessional and disgusting”.
6. The situation caused her to be distrustful of using the shower and she was further deprived of its use while waiting for it to be inspected (for a second time). When the operative attended to inspect the shower, they were shocked at the install and said “shoddy tile work” caused the back of the shower unit not to be able to sit flush against the wall. When she asked why the unit was not sealed, the operative said this was normal as “the company doesn’t want them sealed because it invalidates the insurance”. She believed this to be untrue, as her previous shower was sealed and the operative also sealed in the new one before they left. She felt it was wrong for the landlord to deflect blame onto an insurance company, and was concerned that other customers may be at risk due to this issue.
7. In the recent hot weather she had noticed that her new shower gave out hot water, even on the lowest setting (colour coded as blue). She felt there was something wrong with the settings. Because she could not use water of her preferred temperature, she was again unable to use her shower. She now had to make herself available for the landlord to reattend and fix the issue.
8. She had phoned the landlord about the temperature issue on 11 June 2021 and was given an appointment for 14 June 2021, but nobody attended.
9. As well as feeling let down, she was unhappy with the shower as it was bulky and took up a lot of space in the shower area. This made getting into the shower, standing and moving to sit down on a stool awkward.
10. The landlord told her how to complain, which she did on 18 May 2021, but she had received no response.
11. The experience had been “a massive strain” and “untold of cruelty”. She needed rest due to her health conditions, and the upheaval had caused her additional stress in already difficult circumstances.
12. She would like the landlord to address the shower issue appropriately, and to safeguard others from having a similar experience.
To the Ombudsman’s knowledge, the landlord did not acknowledge or provide a formal response to this complaint.
On 18 June 2021 the resident emailed the landlord to request higher fencing and bifold gates to the front of the property, a gate to the communal car park at the rear of the property, and rear access into her garden from inside the property. She said she needed these things because of her reduced mobility, as “my daily activities are being affected by the inconvenient circumstances of how the property I live in was built”. She also felt “exposed” and at risk of attack due to the deprived nature of the area, high crime rates, and her own experiences of crime and antisocial behaviour (ASB). She pointed out that the landlord was bound to make reasonable adjustments under the Equality Act and Disability Discrimination Act, and gave it permission to contact relevant agencies to obtain information about her health conditions.
On 24 June 2021 the shower manufacturer visited the property. It found no fault with the shower and confirmed that, as a care shower, it was designed to supply water at an ambient temperature and so would not produce very cold water. The manufacturer queried the height at which the shower had been fitted, but it was later confirmed that the shower had been installed at the height recommended by the manual. An internal email by the landlord on this day stated that it could not fit standard showers in homes where the customer had disabilities or a wet room.
On 1 July 2021 the landlord surveyed the resident’s shower and also concluded that it was working as it should. Its records noted that the shower had a feature which did not allow it to supply very cold water. They also mentioned the resident’s concerns about holes in the wall from the original shower bracket, which had been filled. The resident asked for her current shower to be removed and replaced with the previous one, which the landlord originally installed on 13 May 2021. Having received no response to this request, she chased the landlord on 6 July 2021. An internal email by the landlord on 13 July 2021 noted the resident’s request for a lever mixer shower or button powered shower, which she thought would be easier for her to operate than a dial shower. On 22 July 2021 the resident told the landlord she was feeling “very uncomfortable with the current shower situation” due to the hot weather. The landlord sought advice internally in dealing with the issue, noting that it was likely to lead to a complaint, but did not immediately respond.
On 27 July 2021 the resident re-sent her email of 18 June 2021 as she had received no response, and on 28 July 2021 she called the landlord to ask why her shower repair was taking so long. On 30 July 2021 the landlord apologised that the resident had not heard back from anyone, noting that it had tried to call her on 28 July 2021 but there was no answer and no voicemail facility. It said that it had installed a new shower, which was in working order, and if the resident needed further adaptations for medical reasons it would require an occupational therapy report.
An internal email by the landlord on 29 July 2021, together with an earlier email on 7 July 2021, indicated that it was aware of an ongoing issue with a sign advertising a local scaffolding company being attached to the public-facing side of the resident’s fence. At this stage the landlord was unclear as to the ownership of the land on which the sign was located, and was exploring this.
On 31 July 2021 the resident made a further complaint to the landlord, stating that:
1. She was making a formal complaint in relation to her shower, fencing and gate requests. She believed these requests had not been handled appropriately.
2. She was seeking legal advice regarding the shower situation, and was also considering publicity in respect of the landlord’s treatment of its disabled customers.
3. She had photos of her skin condition and how it had been worsened by her shower giving out hot water on the coldest setting. She believed this was due to the water pipes in her loft heating up.
4. She asked the landlord to review recent correspondence between herself and its officer in responding to her complaint.
The landlord thanked the resident for her email and apologised for “her current situation” on 3 August 2021. It said it had “looked into her complaint” and confirmed that, as it identified on 1 July 2021, the type of shower the resident had may not allow her to set the temperature as low as she would like. However, the shower was in good working condition and no issues were found with it. The landlord told the resident it prided itself on diversity and followed the requirements of the Equality Act; if the resident required adjustments for medical reasons, it asked that she follow its aids and adaptations process. It further advised that it would not replace fencing unless the fencing “goes out onto a public pathway or public access”, and if the resident intended to replace the fencing herself, she would need to fill out a home improvement form. The resident expressed her dissatisfaction with this response on 6 August 2021 and said she felt forced to take legal advice and publicise her story through the media. The landlord again sought internal advice on 10 August 2021, but apparently did not take any further action at that time.
More than 3 months later, on 23 November 2021, the resident complained verbally to the landlord about the shower issue. She also provided some medical information on 30 November 2021. The landlord issued its stage 1 complaint response on 7 December 2021, stating that:
1. It had investigated the resident’s concerns by reviewing its internal systems and speaking to its maintenance team.
2. When the resident reported that she was not getting any hot water through her shower and could smell burning, it treated this as an emergency and attended within 24 hours. On this visit it found that the shower required replacement. As the resident had a bath in her home, this was booked as a routine repair (with a 28-day target timeframe).
3. Following the installation, the resident raised concerns that she was having difficulty using the shower and pressing the buttons due to her disability. It recommended that she contacted her GP to arrange an occupational health referral, as the resulting assessment would propose adaptations to make her home more suitable for her health needs. Since the resident said she was unable to turn the shower on, it arranged another emergency appointment and attended the following day.
4. On this visit, it found no fault with the shower. However, as a gesture of goodwill, it agreed for a care shower to be fitted. This was installed during the same visit. The shower in question was used by the landlord in many of its care properties and was fitted with safety features to ensure it was kept at a regulated temperature, preventing the water from being too cold or scalding.
5. On a number of occasions following this appointment, the resident made it aware that the shower would not produce cooler water. It visited her home on 3 occasions to survey the shower and ensure it was working correctly; on each occasion it was unable to find any fault. The shower manufacturer also attended to complete an inspection and found no fault with how the shower was functioning.
6. The resident had requested for her current shower to be removed and replaced with the previous model. Since she reported that she was unable to use this, it would not fit this shower in her property again. Her current shower was fit for purpose and working correctly, and if she felt that a different shower would be more appropriate for her health needs, it encouraged her to follow its aids and adaptations process.
7. It was unable to uphold this aspect of the complaint as it had found no evidence that it had not acted in line with its policies and procedures. However, it found service failure in its lack of response to her complaints in June and August 2021. It therefore partially upheld the complaint, and apologised that the resident had to contact it on a number of occasions before her concerns were addressed.
8. It had met with the relevant teams to ensure that training was provided on this. It also awarded the resident £50 in compensation for service failure as a result of not raising her complaint sooner.
9. If the resident felt that it had not fully answered her complaint or dealt with it to her satisfaction, she could request escalation within 14 calendar days.
The Ombudsman has not had sight of any communication from the resident in reply to the landlord’s stage 1 response. However, the landlord subsequently accepted an escalation request for the following reasons:
1. The resident did not feel that all of the landlord’s actions took her disability into consideration.
2. She remained unable to use her current shower.
3. She was not properly shown how to use her current shower, and was unable to make an informed decision about accepting its installation.
4. She was unable to get cold water on the shower’s coldest setting, and this had agitated her eczema.
5. She felt there had been poor communication by the landlord’s electrical surveyor, and following its operative’s visit to her home.
6. She was unhappy that her complaint had not been fully upheld.
Between December 2021 and October 2022, the resident was represented by a solicitor in relation to a disability discrimination claim, which involved some aspects of her complaint. This meant that some matters were addressed through correspondence between the resident’s solicitor and the landlord’s solicitors, rather than through the complaints process. The claim was later dropped.
The landlord provided its stage 2 complaint response on 13 January 2022, stating that:
1. It had assessed its stage 1 findings with a customer moderator to ensure the response was fair, thorough and accurate.
2. It understood the showers it installed had not resolved the issues outlined by the resident in her previous communications. It assured her that it did all it could to make reasonable adjustments to its customers’ homes in order to support them to live independently.
3. It had asked for an occupational therapist assessment on a number of occasions in order to obtain professional advice on what shower was the best option for the resident.
4. Its stage 1 response had not addressed the resident’s concerns about the second shower being loose and difficult to operate, and about not being given enough information to decide if the third shower was appropriate for her needs. It understood the current shower was not providing the temperature ranges she needed to manage her eczema. Its surveyor had tried to resolve these matters as an early resolution, but it acknowledged that the resident was not satisfied with this.
5. It was sorry the loose shower caused a problem for the resident and it was unable to resolve this at the time. To address this, it fitted a care shower. The model fitted was a nationally recognised shower for care environments, and in its experience was one of the easiest and most effective shower solutions. Since the resident remained dissatisfied, it insisted that she provide an occupational therapist assessment report so that it could ensure all of her needs were met. This would enable it to provide a long-term solution.
6. There was a difference between its operatives’ feedback from visits and what the resident said she was informed. It was unable to state conclusively what conversations took place, but it understood it could have been clearer in its communication about its findings and the work undertaken. It recognised that the resident had had to contact it on numerous occasions to get updates from its repairs team, who had promised callbacks. When the callbacks did not happen she asked to raise a complaint, which was also not actioned.
7. It accepted that its stage 1 responder and another officer could have been more thorough when responding to the resident.
8. It agreed with the stage 1 outcome, but recognised and sincerely apologised that there were some areas it did not respond to or consider as part of the redress offered. To reflect the poor experience the resident had had and the inconvenience caused to her, it offered compensation of £300. This comprised:
  1. £100 for its delays in complaint handling;
  2. £100 for its lack of communication;
  3. £100 for inconvenience.
9. It was sorry to hear that the situation had had a negative impact on the resident’s physical and mental wellbeing. Any medical or injury related issues fell outside the remit of its complaints process, and were usually signposted to its insurers. It provided details of how the resident could contact its insurers and/or escalate her complaint to this Service.
On 23 May 2022 the landlord raised a work order for its officer to attend and inspect a section of the resident’s fence which backed onto the communal car park. This related to a report by the resident that some panels had weathered. A system update by the landlord on 25 May 2022 stated that the materials for repairing the fence were not yet available, and the job would be arranged for 6 June 2022. It also noted the resident’s concerns about a plastic sign that had been attached to the back of her fence, advertising a scaffolding company. She asked if the sign could be removed as she was worried it was attracting graffiti.
The resident was unhappy with the conduct of the landlord’s surveyor who spoke to her on the phone on 25 May 2022. While the details of the conversation and the resident’s subsequent contact with the landlord have not been made available to this Service, the Ombudsman understands that the resident brought her concerns to the landlord’s attention.
On 7 June 2022 the resident made a verbal complaint via the landlord’s customer hub, whose records stated that:
1. The resident was unhappy with the landlord’s delay in responding to her concerns about its surveyor’s behaviour.
2. The surveyor in question spoke to her on the phone and was “very irate”, raised their voice, “blew things up out of proportion”, and was rude and disrespectful. She felt they were unprofessional and did not have “the right mentality for the job”.
3. The resident was also unhappy that the surveyor had allowed a scaffolding company to place a large sign on the back of her fence facing the car park area. She believed the sign was a catalyst for ASB, as there had been graffiti sprayed next to it and other incidents of ASB since it had been put up. It was also making the area look messy and unsightly.
4. She felt the surveyor was being racist and was deliberately targeting her by keeping the sign up to spite her.
5. She wanted the surveyor’s behaviour and tone to be investigated, the sign to be removed from the fence, and the graffitied areas of fence to be tidied up.
On 8 June 2022 the officer who had been allocated to investigate the resident’s complaint contacted her to introduce themselves. The resident expressed concerns about this officer dealing with her complaint, as she had been unhappy with their previous complaint response in December 2021, and on 9 June 2022 the landlord allocated the complaint to a different officer. They contacted her to introduce themselves the same day and said they would respond by 21 June 2022.
The landlord also filled holes in the resident’s fence and removed/refixed feather edge boards on 9 June 2022. On 14 June 2022 the resident reported further graffiti on the fence panels, advertising sign and brickwork at the side of her property. On 16 June 2022 the landlord contacted the resident about her complaint and explained that, since she had instructed solicitors in relation to her rear garden issues, it was currently unable to address this matter through its complaints process.
After liaising with its legal team, the landlord wrote to the scaffolding company on 17 June 2022. It requested that the company removed its sign from the resident’s fence within 7 days, as the sign was placed on a boundary to which its property had rights. It advised that, if the sign was not removed and any damage made good within the 7-day period, it would arrange for the sign to be removed and would make it available for collection for a further 7 days. It would then dispose of the sign, and invoice the company for any costs.
The landlord then issued its stage 1 response to the resident’s complaint on 21 June 2022, stating that:
1. The resident had expressed concerns that she had a negative experience during a phone conversation with its surveyor on 25 May 2022, following a visit by one of its operatives. It took these allegations extremely seriously and a full internal investigation had been carried out. Due to the nature of the complaint and the data protection aspects involved, it was unable to provide the outcome of this investigation, but it assured the resident that the appropriate action had been taken. It also thanked her for escalating her concerns.
2. It understood that the resident did not feel comfortable with the surveyor attending her home. It recognised the impact of the experience, and had liaised with the surveyor’s manager to ask that the surveyor does not attend the resident’s home for any future inspections.
3. To provide a satisfactory resolution, it had arranged for the surveyor’s manager to visit the resident on 20 June 2022. Following this visit, the manager confirmed that the fence had been stained and the sign had been removed. It hoped this visit demonstrated that it took her concerns seriously. It had also made a referral to its estates team to remove the remaining graffiti.
4. Due to the internal investigation, it was unable to conclude whether the complaint was upheld or not. If the resident felt it had not fully answered the complaint or dealt with it to her satisfaction, she could request escalation.
On 5 July 2022 the resident sent the landlord an email from the local authority confirming that the fence and land next to her property was not council owned. She also provided a letter from her dermatologist on 6 July 2022, which stated that they were not aware of any specific bathing or shower temperatures recommended for a person with eczema, but that “some patients with eczema may prefer a cooler or lukewarm shower”.
On 15 July 2022 the landlord contacted the resident to confirm that it would clear bushes, alter the fencing and install a new gate to the rear of her property. It said the gate would have a standard bolt and key operated night latch so that the resident could access her garden from the car park with a key. It proposed beginning the works on 21 July 2022. With regard to the shower issue, the landlord told the resident it had drafted an occupational health referral which had been sent to her solicitor for comment and approval. It confirmed it would review the shower door seal at the same time as the other shower works. It also sent the resident a link to the repair responsibility tool on its website. The resident replied that she did not want an occupational health assessment at that time. On 20 July 2022 the landlord provided information about alternative lock options for the gate, and requested the dimensions of the resident’s wheelchair in connection with her request for a dropped kerb.
On 21 July 2022 an internal email by the landlord noted that a further sign had been attached to the resident’s fence by the same scaffolding company. On 25 July 2022 the landlord sent a second letter to the scaffolding company, referring to its previous letter of 17 June 2022 and again asking for the sign to be removed within 7 days. It also put the company on notice that should it continue to place material on the fence, the landlord would consider commencing legal proceedings to prevent the company from trespassing on property in which it had an interest and to abate the nuisance caused by that trespass.
The same day (25 July 2022), the resident provided her wheelchair dimensions to the landlord. She confirmed that the operatives who cleared the shrubs had done “a fantastic job”, although it took them longer than it would have taken if they had used power tools. She said she would prefer a rim lock for the gate, and that she was happy that things were “moving along” with the signage and graffiti. On 28 July 2022 the landlord confirmed that the gate works would begin on 4 August 2022. It added that, since the shower issue was the subject of discussion between solicitors, it was unable to make an appointment for replacement of the shower as the occupational health process had not been exhausted. The resident subsequently chose not to pursue legal action.
On 15 August 2022 the landlord sent the resident an update on her complaint. It thanked her for her patience while it finalised its response and confirmed that, now she was no longer in discussions with her solicitors, it was able to address all aspects of her complaint. It referred to its previous stage 2 response regarding the resident’s shower, in which it said it would need an occupational therapist assessment in order to install a fourth shower in her home. However, it now agreed to fit a fourth shower as a gesture of goodwill, on the understanding that this was the final shower it would fit unless the resident provided medical evidence of a further requirement (or there was a fault with the shower). It provided a disclaimer for the resident to sign and return.

The following day (16 August 2022), the resident requested to escalate her complaint. Her reasons for doing so were that:
1. For over a year she had been unable to consistently use her shower, as it produced hot water in hot weather and lukewarm water on other days. The landlord’s previous response to her complaint about this issue did not take account of the fact that the pipes in her loft required improved insulation. It had recently agreed to complete this work, but nobody had attended yet. She wanted to know why it had taken so long to identify this problem, which had exacerbated her skin condition and pain in her hands. The situation had also taken “a huge toll” on her mental health. She therefore felt the compensation offered was insufficient.
2. No date had been set to change her shower guard seals or the shower guard itself, which was ineffective in keeping water from spreading across her bathroom floor.
3. She felt the landlord should acknowledge its ownership of her fence, as it had previously fixed or replaced panels that were damaged by vandalism. It told her it would send another letter to the scaffolding company asking it to remove the sign within 7 days, and she had agreed to let it know whether the sign had been removed by 8 August 2022. To date, the sign was still on the fence. The landlord said it would remove the sign itself if it was not removed by the company, but this commitment was not reflected in the recent complaint update.
4. The graffiti still had not been removed from the walls at the side of her property.
5. The landlord had previously agreed to lower her kerb, but she felt this needed to be reviewed as a patch of grass was hindering her access. The area was also uneven and difficult for her to walk on, causing her to be unsteady on her feet and to experience pain in her lower limb.
6. The gate installation was not completed to a high enough standard. The wrong lock was used and no bolt was fitted. The lock was installed in a “slightly twisted off-centre position” and the key was difficult to use. The wood panels also did not overlap fully, creating gaps in the fencing, and there was no handle which made closing the gate difficult. In addition, an overswing caused the gate to move into an “unnatural position” and risked damage to the hinges.
The landlord confirmed receipt of the escalation request on 17 August 2022 and said it would issue its stage 2 response by 13 August 2022 (this was presumably a typo and should have read 13 September 2022). The resident also signed the disclaimer provided by the landlord on this day, authorising it to fit a “final shower” and confirming that she would either provide medical evidence or instruct her own contractor – with its permission – if she required a further shower replacement. On 23 August 2022 the landlord arranged an appointment with the resident to replace her shower and check the insulation of pipes in the loft.
The stage 2 complaint response provided by the landlord to this Service, dated 2 September 2022, stated that:
1. The resident’s complaint regarding her shower had already exhausted its complaints process. It understood its regional manager had been attempting to contact the resident in order to arrange a date for the new shower to be installed. If she was dissatisfied with its response, she could refer her complaint to this Service.
2. As the scaffolding company had not complied with its request to remove the sign from the resident’s fence, it had asked its regional manager to incorporate removal of the sign into the other work currently being scheduled at her home. It recognised the inconvenience the sign had caused her and hoped its efforts to remove it through the correct route demonstrated that it took her concerns seriously.
3. It was sorry to hear that the work completed by its contractors did not meet the resident’s expectations. It took the standard of its work seriously and had asked its regional manager to carry out a post inspection. Its understanding was that the works were not yet complete, and it appreciated that it must be hard to see past incomplete works. It asked the resident to continue to liaise with its regional manager in order to arrange a convenient time for it to complete the works.
4. It thanked the resident for her patience and for working with it in these matters. It would use her case in its regular feedback meetings in order to enable its team to continue to improve.
However, a slightly different and undated version of the stage 2 response, provided to this Service by the resident, included the following additional points:
1. As a gesture of goodwill, it had authorised for a final shower to be installed in the resident’s home. It understood she had signed a disclaimer stating that it would not change the shower again without medical documents outlining the reasons for a required replacement (unless there was a fault). It understood its regional manager had arranged for the shower installation to take place on 27 September 2022.
2. The resident’s dissatisfaction regarding her fence concerned graffiti as well as the scaffolding company’s sign. It was limited in the action it could take as the Land Registry showed that the fence was not owned by any party. It had escalated the issue to its legal team.
3. It was pleased to hear that a post inspection of the gate took place on 8 September 2022. At this appointment, it discussed the work that had been carried out and the outstanding paving works with the resident. It asked her to give it the opportunity to complete the paving so that the garden was “finished in its entirety”. It had asked its regional manager to arrange a convenient time to complete this.

Post complaint

On 8 September 2022 the landlord visited the property with its contractor to take measurements for the path works. It then completed the fence alteration and gate installation works the same month. It installed the resident’s new non-thermostatic shower on 27 September 2022, and removed graffiti reported by the resident on 28 September 2022.
The landlord also agreed to the resident’s request for a ramp, handrail and dropped kerb to improve her access to the gate when using her wheelchair, and these works were completed on 10 October 2022. On 31 October 2022 the landlord replaced the resident’s shower screen. On 10 January 2023 it carried out a same-day replacement of a damaged shower arm.
On 24 March 2023 the resident informed this Service that the gate works had been left incomplete, as the gate had an inappropriate lock and was difficult to open and close due to misalignment. The landlord inspected the gate on 19 August 2023 and fitted a rim lock and handles to it on 28 August 2023.

Assessment and findings

Scope of investigation

Under paragraph 42(a) of the Scheme, the Ombudsman may not consider complaints which are made prior to having exhausted a member landlord’s complaints procedure. For this reason, matters that have not been addressed within the landlord’s complaints process are not included in this investigation. This includes the resident’s request for higher fencing and bifold gates at the front of her property, as although she raised this in her complaint of 31 July 2021 (referring to her request made on 18 June 2021), it was not addressed in the landlord’s subsequent complaint responses. The resident has informed the Ombudsman that this matter remains unresolved; she may therefore choose to raise a further complaint with the landlord in respect of the request, which she may then refer to this Service if she is dissatisfied with its final response.

Shower replacement

When the resident reported a potentially dangerous issue with her original shower, the landlord was right to attend within its emergency timescale of 24 hours. Having established that the shower required replacement, it was reasonable for it to categorise this as a routine repair (with a 28-day target timeframe). However, its basis for doing so was that the resident had a bath in her home, whereas in fact she found it difficult to get in and out of her bath due to her disability. While the 7-day timeframe for replacing the shower was not excessive, it would have been good practice for the landlord to confirm the resident’s arrangements for washing while she was without her shower. Had it done so, and communicated more effectively with her regarding her needs, it would have been in a position to take her individual circumstances into account and consider an interim solution. It should also have reflected the length of time the resident was unable to shower in its subsequent offer of compensation, with reference to its matrix.
The resident struggled to operate the replacement shower that was installed on 13 May 2021. She and the operative who installed the shower gave differing accounts of their conversation, but nevertheless there is evidence that the resident raised her concerns with the landlord the same day. The landlord later addressed the discrepancy in accounts in its stage 2 complaint response (on 13 January 2022), and reasonably concluded that it was unable to determine exactly what discussions took place with its operative. However, it did not specifically address the resident’s concerns about her contact with its customer hub on 13 May 2021, and this was unsatisfactory. It would have been able to check its records of the 2 calls made by the resident on this day, as well as speaking to the call takers involved, and state its findings in the complaint response. By omitting to do so, it missed an opportunity to demonstrate transparency and to reassure the resident that it had taken her concerns about customer care seriously.
In view of the resident’s concerns about the replacement shower, it was helpful and proactive of the landlord to install a further replacement shower the following day. Unfortunately, it did not explain (either before or after the installation) how the shower differed from previous models installed in the property. While it may not have foreseen an issue with the ambient temperatures maintained by a care shower – and it was clearly under the impression that a shower suited to a care environment would better meet the resident’s needs – providing clear information about how the shower worked may have prevented significant confusion and repeated inspections over the following weeks. Had the landlord taken the time to understand the effects of the resident’s health conditions (such as her preference for cooler showers due to her eczema) in advance, installation of an inappropriate shower may have been avoided. Similarly, having a discussion with the resident following the installation would have given the landlord the chance to allay her concerns about the shower being designed for people with learning disabilities, and may even have led it to pre-empt the pipe insulation issue.
Having already installed two replacement showers, the landlord’s reluctance to install a third without supporting medical evidence was understandable. It was therefore reasonable of it to request an occupational health assessment. The Ombudsman appreciates that, for some of the time, the landlord was dealing with the resident’s disability discrimination claim alongside her complaint related correspondence. The resident declined to undergo an occupational health assessment, despite the landlord making efforts to progress this by drafting an assessment, and the assessment being a recommendation by solicitors. The evidence provided by her dermatologist did not support a medical reason for replacing the care shower, noting that water temperature was a matter of “individual preference”, although some people with eczema may prefer cooler showers. In the circumstances, it was appropriate – and a reasonable adjustment – for the landlord to agree to a further and final shower replacement once the legal proceedings had ended. This was in accordance with its aids and adaptations policy, which states that minor adaptations (under £1,000) may be authorised by a manager in the absence of an occupational health assessment.
Though the landlord’s response to the resident’s request for a third replacement shower was adequate (and the delay justifiable), its delay in exploring insulation of her water pipes was not. The resident first expressed her concern that the pipes were insufficiently insulated, which may be causing the temperature of her shower to be affected by weather conditions, in July 2021. She repeated her concerns about this in August 2022, as well as informing the landlord that she had noticed a link between hot weather and the temperature of her shower water in June 2021 and July 2022. In July 2022 the landlord’s regional manager had a helpful email discussion with the resident about how water pressure fluctuations could cause variation in temperature, and the resident advised that she could avoid creating a short burst of hot water by not flushing the toilet at the same time as showering. However, it was not until September 2022, after the resident had restated her concerns in her most recent escalation request, that the landlord made arrangements to check the insulation. This was a simple action that it could have taken at a much earlier stage in order to put the resident’s mind at rest. It may also have improved the water temperature issue.
With regard to compensation, the landlord offered the resident £200 in relation to this aspect of her complaint. This comprised £100 for lack of communication and £100 for inconvenience – both consistent with the highest impact award set out in its compensation matrix. While these awards were reasonable, the Ombudsman finds that additional awards are appropriate in respect of the resident’s lack of access to suitable washing facilities, the landlord’s lack of investigation in relation to the resident’s contact with its customer hub, and its delay in checking her loft insulation. Taking the above into account, though the landlord handled some elements of the shower replacement well, an overall finding of maladministration has been made in relation to this aspect of the complaint.

Graffiti and signage removal

The documentation reviewed by this Service shows that there has been a history of issues with graffiti and signage being affixed to the resident’s fence, with the resident expressing her dissatisfaction with the landlord’s previous response to related matters in May 2021 and evidence of the landlord making internal enquiries about boundary responsibilities in March 2021. However, the resident’s complaint about graffiti and signage was made in June 2022, and related to a sign that she told the landlord about in May 2022 (although the landlord’s own correspondence made reference to a scaffolding advert in July 2021). The focus of this investigation is the landlord’s response to the resident’s reports since May 2022.
The Ombudsman accepts that the landlord had some difficulty in establishing both the ownership of the adjoining land, and its rights in respect of the resident’s fence. This was further complicated by the fact that the location of the sign in the summer of 2022 was different to the location of a previous sign, and so the landlord’s investigations relating to the previous location had limited relevance. Following receipt of the resident’s complaint, the landlord took prompt and effective action by writing to the scaffolding company to request removal of the sign. After the sign was removed, but subsequently replaced, the landlord wrote to the company again. Copies of the letters have been examined by this Service and demonstrate a robust and appropriately incremental approach.
The landlord’s approach to the resident’s reports of graffiti appeared to be less consistent. The resident’s email of 18 May 2021 indicated that it had previously arranged removal of graffiti that she reported, but she was unhappy with the result as some paint remained visible. The landlord responded that it would not remove the remaining graffiti. There is no evidence that it responded to the resident’s concerns about the scaffolding company’s sign attracting graffiti in May 2022. However, following the resident’s complaint about graffiti on 7 June 2022 – and her further report of graffiti on 14 June 2022 – the landlord committed to remove the graffiti as part of its stage 1 complaint response. The resident was happy with the landlord’s communication on the topic in July 2022, but noted in her escalation request in August 2022 that the graffiti had not yet been removed. The 3-month delay was unacceptable, and the landlord’s failure to inform the resident of its anticipated timescale for carrying out the removal works caused her avoidable worry and uncertainty. Though the graffiti was successfully removed by the landlord in September 2022, a finding of service failure has been made as a result of the landlord’s confused approach, variable communication and delayed action.

Gate request

The resident’s request for a gate, enabling her to access the communal car park from her property, was one of several requests she made on 18 June 2021. She then raised it as part of her complaint on 31 July 2021, in which she said she believed the landlord had not handled her requests appropriately. The Ombudsman has seen no evidence that the landlord responded to either of these communications, which was unsatisfactory. However, it is noted that there may have been some separate correspondence in connection with the resident’s disability discrimination claim; the resident informed the landlord on 6 August 2021 that she had sought her solicitor’s advice regarding the gate request and other matters.
On 9 June 2022, shortly after the resident made her more recent complaint about graffiti and signage (as discussed above), the landlord contacted the resident to arrange an appointment to survey both her shower and a “potential gateway in rear fence”. It is unclear what gave rise to this offer, as to the knowledge of this Service, there had been no recent correspondence regarding the matter and the legal proceedings did not end until at least August 2022. Nonetheless, from that point on, the landlord’s handling of the request was good: it provided details of the works it intended to complete on 15 July 2022, discussed lock types with the resident on 20 July 2022, provided a start date for the works on 28 July 2022, and began them on 4 August 2022. The landlord’s communication with the resident and accommodation of her requirements over this period was in line with what the Ombudsman would expect.
The resident subsequently highlighted, in her escalation request dated 16 August 2022, that there were some quality issues with the gate that had been installed. These related to the position of the lock, gaps in the fencing, a lack of handle, and an overswing issue risking damage. The landlord could not have foreseen that these issues would occur, having employed qualified contractors to carry out the works. It also noted, both in an internal email dated 23 August 2022 and in its stage 2 response to the resident dated 2 September 2022, that the gate installation was not yet complete. The landlord responded appropriately to the resident’s concerns by carrying out a post inspection and discussing the installation with her on 8 September 2022. It also promptly accommodated her requests for a ramp, handrail and dropped kerb – some of which were minor works, and some more major – the following month. However, it did not resolve the outstanding lock issue and fit handles to the gate until 28 August 2023, almost a year later. Therefore, while it is positive that the landlord agreed to the resident’s request for a gate and carried out the initial works within a short period of time, a finding of service failure has been made in relation to its delay in resolving issues with the gate, which affected the resident’s ability to use it safely and comfortably.

Complaint handling

The landlord failed to acknowledge and respond appropriately to the resident’s complaints of 15 June 2021 and 31 July 2021. This was unacceptable. While the eventual stage 2 response indicated that the landlord’s email of 3 August 2021 had constituted an attempt to address the situation by way of an ‘early resolution’, this was unconvincing, as it referred to only 1 of the 3 issues raised by the resident in her complaint the week before. In addition, the landlord did not identify the resident’s expression of dissatisfaction with its handling of her graffiti and signage reports on 18 May 2021 as a complaint. Had it logged and progressed complaints in relation to each of these matters at the time, the substantive issues may have been resolved more swiftly and a protracted complaints process (involving 12 complaints, escalation requests, formal updates and responses over a 15-month period) avoided.
The landlord’s stage 1 response to the resident’s shower complaint – issued 6 months after she first complained about the issue, but 10 working days after the complaint was logged – provided a useful summary of events relating to the initial shower replacement, along with an outline of its decision making in reference to its policies. However, as it later admitted, the response was not sufficiently thorough. While it did not find any fault in relation to its handling of the shower issue, it is positive that it identified its service failure in complaint handling and offered redress for this (albeit of £50, indicating medium impact). It also gave assurance that it had put measures in place to prevent recurrence by arranging staff training, which was appropriate.
Since the Ombudsman has not had sight of the resident’s escalation request, the landlord’s response timeframe and engagement with the complaint at stage 2 can be only partially assessed. The stage 2 response was issued 24 working days after the stage 1 response, suggesting that the response time (with a target of 20 days from the date of escalation) was not excessive. The response was generally more detailed and consistent with the landlord’s position (at the time) of requiring an occupational health assessment. It drew reasonable conclusions from the available evidence – which, in relation to some aspects, was lacking – and rightly signposted the resident to its insurers with regard to a personal injury claim. However, as discussed above, it did not fully explore the resident’s concerns about her contact with its call takers on 13 May 2021. The compensation of £300 offered was reasonable at the time, and included an acceptable award of £100 for high impact complaint handling delays.
By contrast, the landlord’s stage 1 response to the resident’s complaint about its surveyor’s behaviour was unsatisfactory. It was appropriate for the complaint to be allocated to a different officer after the resident expressed her concerns about the originally allocated officer; landlords may use their resources as they see fit, and the landlord’s decision to reallocate the complaint demonstrated flexibility and sensitivity, as well as a willingness to avoid bias (or perception of bias). However, though the landlord was right to be mindful of its data protection obligations, its stage 1 response was unhelpful due to its brevity and vagueness. The Ombudsman would not expect a landlord to provide details of any disciplinary action taken against its staff, but would expect it to state whether or not a complaint about staff conduct had been upheld. While agreeing to the resident’s request for its surveyor not to attend her property in future was a reasonable course of action, the response should also have addressed the resident’s allegation that its surveyor had been racist towards her, if only to give assurance that it had found no evidence this was the case. Regardless of whether or not the landlord believed the resident’s concerns to be substantiated, it should have demonstrated a more sympathetic and supportive approach.
The stage 1 response was more proactive in relation to the graffiti and signage issue, and included confirmation that both had been addressed following a visit it arranged the previous day. However, it missed an opportunity to address the resident’s concerns about recent ASB incidents and offer relevant support. The stage 2 response was similarly proactive in relation to a recurrence of the signage issue and various gate issues, but the fact that 2 different versions of the stage 2 response have been provided to this Service – one by the landlord, and one by the resident – calls into question the reliability of this record. It is also concerning that the version apparently received by the resident was undated. While the landlord’s version was dated 2 September 2022, the alternative version appears to have been dated at least 6 days later, as it referred to a post inspection on 8 September 2022. Some of the revised wording in the later version was confusing; for example, it was ambiguous as to whether information from the Land Registry limited its options for removal of the graffiti, the signage, or both. Since the landlord had until 14 September 2022 to provide a response within its 20-day timeframe, it seems unlikely that the earlier response was issued in a rush to achieve compliance and later reissued. It may be the case that a draft response was provided to the Ombudsman in error, and a recommendation has therefore been made in relation to record keeping.
An overall finding of maladministration has been made in respect of the landlord’s complaint handling. This is due to its initial failure to respond to the resident’s complaints, its lack of thoroughness in relation to her shower complaint, its evasiveness in relation to her staff conduct complaint, its failure to offer ASB related support, and its duplicate stage 2 responses in relation to her signage/gate complaint.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was:
1. maladministration by the landlord in its handling of shower replacement works;
2. service failure by the landlord in its handling of graffiti and signage removal;
3. service failure by the landlord in its handling of the resident’s request for a gate;
4. maladministration by the landlord in its handling of the resident’s complaint.

Reasons

The landlord replaced the resident’s faulty shower within a reasonable timeframe, but left her without access to useable washing facilities for an 8-day period. Its omission to explain the settings of the care shower resulted in avoidable confusion and repeated appointments. It also delayed in addressing the resident’s concerns about pipe insulation. Its initial position regarding an occupational health assessment was reasonable, as was its later decision to change its position and agree to the resident’s request for a further replacement shower. However, the delay caused her further distress and inconvenience.
The landlord responded promptly and effectively to the resident’s reports of advertising signs fixed to her fence by a third party between May and July 2022. However, it responded inconsistently to her reports of graffiti. Its communication relating to the graffiti removal was variable and the 3-month delay in carrying out the removal works was excessive, causing additional distress to a vulnerable resident who was already concerned about ASB.
The landlord did not respond to the resident’s original request for a gate giving access to the communal car park. Once it was in a position to progress the request, it acted swiftly to install the gate and its communication with the resident was good. It also accommodated her associated requests for a ramp, handrail and dropped kerb within a reasonable period of time. When the resident raised concerns with the quality of the gate installation, it completed a prompt post inspection but did not fix the reported issues until almost a year later.
The landlord did not identify an email from the resident in May 2021 as a complaint, and did not acknowledge or respond to her complaints in June and July 2021. This delayed resolution of the substantive issues and caused the resident additional distress and frustration. Some of its complaint responses in 2021 and 2022 were insufficiently thorough, vague, failed to address points raised, and did not offer appropriate support. Different versions of the final stage 2 response have been provided to this Service, calling the landlord’s record keeping into question.

Orders and recommendations

Orders

The landlord is ordered to do the following within 4 weeks of the date of this report:
1. Apologise to the resident for its delays and other failures in handling her repair/adaptation requests and associated complaints.
2. Pay the resident £1,540, comprising:
  1. £300 for its failures in handling her shower replacement, including its poor communication, delay in checking her loft insulation, and lack of investigation in relation to her contact with its customer hub;
  2. £12.50 for the inconvenience caused by her lack of access to suitable washing facilities between 6 and 14 May 2021, calculated as £2.50 (50% of her bathroom) per day for 5 days (8 days total with 3 days’ wait time);
  3. £627.50 for the inconvenience caused by her reduced access to suitable washing facilities between 14 May 2021 and 27 September 2022, calculated as £1.25 (25% of her bathroom) per day for 502 days;
  4. £100 for its service failure in handling graffiti and signage removal;
  5. £100 for its service failure in handling her request for a gate;
  6. £400 for its delays and failures in complaint handling.

Any payment already made should be deducted from the amount above, meaning that the difference is now due. For example, if the landlord has already paid the resident the £300 it offered on 13 January 2022, it must now pay the difference of £1,240.

Confirm with the resident whether there are any outstanding issues with her gate (such as misalignment). If any issues are identified, these should be repaired in accordance with the timescales set out for a routine repair.
Provide evidence of compliance with the above to this Service.

Recommendations

It is recommended that the landlord reviews its record keeping in relation to complaints and ensures that final versions of complaint responses are clearly distinguished from draft responses.
It is recommended that the landlord informs the resident of its position regarding her request for fencing and gates at the front of her property, including an explanation of its decision making, and supports her in making/escalating a complaint if she is unhappy with its response to her request.