Notting Hill Genesis (NHG) (202127687)

REPORT

COMPLAINT 202127687

Notting Hill Genesis (NHG)

23 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:
1. Response to the resident’s request to attend an appeal hearing with a representative.
2. Response to the resident’s queries about a contact arrangement and request for reasonable adjustments.
3. Complaint handling.

Background

The resident has been an assured tenant of the landlord since December 2003. The landlord is a housing association. The landlord is aware that the resident is vulnerable and has provided records relating to mental health issues.

Policies and procedures

Under the Equality Act 2010 organisations carrying out public functions are required to take positive steps to ensure disabled people are able to access their services as easily as non-disabled people. They should make adjustments when disabled people are placed at a substantial disadvantage (more than minor or trivial) because of their disability compared to non-disabled people.
The reasonable adjustment duty is ‘anticipatory’, meaning organisations cannot wait until a disabled person needs to use their service. They must consider in advance what disabled people may reasonably need to access their services.
The landlord’s equality, diversity and inclusion policy defines a ‘reasonable adjustment’ as being designed to support residents needs while accessing its services. These should remove barriers and enable residents with disabilities to access the same benefits, terms or conditions as other residents. When considering a request for a reasonable adjustment, the term ‘reasonable’ is reliant on what the landlord can do as an organisation without effecting its resources, efficiency and ability to practically carry out what is requested.
The landlord’s complaint policy at the time said that stage one complaints would be handled by the ‘local officer’; or the manager, if the complaint was about the local officer. It would respond to stage one complaints within 10 working days and stage 2 within 20 working days. Residents had the option to have their stage 2 complaint reviewed by an independent resident reviewer. In exceptional circumstances, the timescales may change and where this needed to happen, it would agree a new timescale with residents.

Summary of events

On 9 September 2021 the landlord told the resident about a contact arrangement it was implementing for him along with its reasons for this and his right of appeal. The same day the resident submitted an appeal and asked to be able to do this verbally via an online meeting.
The landlord acknowledged the appeal and suggested dates for the hearing on 13 September 2021. On the same day the resident asked for alternative dates so he could have time to prepare for this and if he could attend with a representative. The resident chased a response to this on 21 and 27 September 2021.
On 28 September 2021 the landlord asked the resident to provide suggested dates for the appeal hearing. The resident responded chasing a response to whether he could bring a representative with him. The landlord advised it would find out an answer to this once he had provided some suggested dates and the resident responded that he needed to know whether he could bring the representative before he could provide dates.
On 1 October 2021 the resident asked some additional questions about the contact arrangement to enable him to raise the appeal. He also chased a response to his request to bring a representative with him to the hearing. He asked for the response to be provided in the same numbered format as he had set out his queries as this would help with his disability. The landlord responded 3 days later that it would confirm if he could bring a representative to the appeal hearing that week.
The resident chased a response to this on 13 October 2021 and on 21 October 2021 he made a formal complaint about it not responding to this request. He said that its failure to respond was deliberate, an act of bullying and unfavourable treatment. The landlord acknowledged the complaint the following day.
On 25 October 2021 the landlord confirmed that he could bring a representative to the appeal hearing. The resident replied chasing a response to the other queries raised on 1 October 2021.
On 4 November 2021 the landlord provided its stage one complaint response. It apologised for the time taken to respond and explained this was due to it trying to find a reviewer for his case. It provided some suggested dates for the appeal and advised that his questions regarding the appeal would be answered at the hearing. It offered him £50 compensation for the delayed response.
The resident asked to escalate his complaint on 8 November 2021 as it had not properly addressed the 2 specific points raised as part of his initial complaint. He also chased a response to the additional queries raised in his e-mail of 1 October 2021, which he had asked for to enable him to appeal the contact arrangement. He said it was unfair to expect him to attend the appeal hearing without being able to review all of the evidence or properly prepare for the meeting. He said that he would be able to arrange a meeting date once the information was received and asked this to be treated as a formal request for a reasonable adjustment under the Equality Act 2010. The landlord acknowledged the complaint 3 days later and the resident responded asking for an independent resident reviewer to be part of the process. He also provided additional information about his stage 2 complaint on 2 December 2021, which included a request for it to address issues regarding complaint handling.
On 13 December 2021 the resident made a complaint about the landlord’s lack of response to additional queries regarding the contact arrangement and request for reasonable adjustments that were raised on 1 October and 8 November 2021. The landlord responded the following day advising that this issue formed part of his existing stage 2 complaint and would be addressed as part of that response, and so a further complaint would not be raised.
On 16 December 2021 the landlord advised that the complaint response would be delayed due to a resident reviewer being unavailable. It gave an updated deadline for the response to be provided as 14 January 2022. On 14 January 2022 it further extended the deadline for the response to be provided to 28 January 2022, due to the availability of a resident reviewer.
On 20 January 2022 the landlord provided its stage 2 complaint response, which said:
1. It acknowledged there had been a delay in it confirming he could attend the appeal hearing with a representative, and apologised for this. There was no evidence to suggest that this delay was deliberate and it did not believe this was an act of bullying or unfavourable treatment; or that it was in breach of the Equality Act 2010.
2. It acknowledged there had been a delay in its complaint handling and apologised for this.
3. There was no evidence to suggest further action was required and reoffered the £50 compensation for its delayed response.
In January and February 2022 the resident asked the landlord on several occasions to respond to his additional queries regarding the contact arrangement and his request for reasonable adjustments. He said he had been told these would be responded to as part of the complaint but they had not. The landlord responded that it was unclear what queries remained outstanding and there was no evidence it had failed to respond to a formal request for reasonable adjustments. The resident suggested it seek clarity from landlord staff about what queries were outstanding and it informed him that it had completed its complaints process and informed him of his escalation rights to this service.
In February 2022 the resident escalated his complaint to the Ombudsman. In May 2022 he told this service that the reason for the reasonable adjustment request was because of his dyslexia. He said that he struggled with processing information and needed the information in advance of the appeal hearing to be able to prepare as he used specialist software and equipment. He also said that he used representatives for support and assistance because of this and his mental health issues.

Assessment and findings

Scope of investigation

The resident has alleged that the landlord has breached the Equality Act 2010 by not making reasonable adjustments for him. The Ombudsman is unable to determine whether there has been a breach of this legislation as this would be a matter for the courts to consider. However, consideration has been given as to whether the landlord’s actions were reasonable in the circumstances and whether it gave due regard to its responsibilities under the Equality Act.
As part of his stage 2 escalation request in November 2021, the resident raised concerns about the landlord’s lack of response to his queries about the contact arrangement and requested reasonable adjustments. He also made a further complaint about this in December 2021 and was told that it formed part of his existing complaint and would be addressed within the stage 2 response; however, it was not. This means that the landlord has not provided a response to this issue as part of its formal complaint procedure. The landlord was not required to include this as part of the existing complaint; however, as it told the resident that it would and had the opportunity to do so, this issue falls within the scope of the Ombudsman’s investigation, despite it not having provided a formal response to this issue.

Resident’s request to attend an appeal hearing with a representative

The landlord responded to this request in 31 days and after the resident had chased it on at least 5 occasions and raised a formal complaint. While not a significant delay, it is clear from the resident’s persistence that this was an important issue for him. The landlord acknowledged as part of the complaint process that its response was delayed and apologised for this, which was appropriate. When it did respond, it confirmed that he could attend with a representative, which was appropriate in light of the resident’s vulnerabilities.
From the records provided, there is no evidence that the lack of response was a deliberate act of bullying and unfavourable treatment. There were internal e-mail exchanges regarding his query, which indicated that it was considering this; however, the resident was not aware of this. As the resident chased this on a number of occasions, with little or no response, it is understandable that he felt ignored and it would have been appropriate for the landlord to provide updates to him about the progress of his query. This would have reassured him that it was considering his request and he was not being ignored, bullied or treated unfavourably.
The resident said he needed to know whether he could bring a representative before he could provide suggested dates. This was understandable as he would need to confirm the availability of the representative, if the landlord agreed they could attend. Therefore, the landlord’s refusal to confirm whether he could bring a representative until after providing dates was inappropriate and unhelpful.
Overall, there was maladministration in the landlord’s response to the resident’s request to attend an appeal hearing with a representative. Its response was delayed and while the delay was not significant, it was clearly an important issue for the resident. The lack of response resulted in him chasing the landlord on at least 5 occasions and raising a formal complaint, and it was only after this that it provided an answer. There is no evidence that it deliberately did not respond to the query, but it could have provided updates to the resident to offer reassurance that it was considering his request. Its failure to do this left him feeling ignored. The landlord acknowledged that its response to this request was delayed, apologised and offered the resident £50 compensation. While appropriate that it recognised service failure and apologised, the level of redress offered was insufficient when considering the level of distress and inconvenience caused to the resident. Therefore, an order has been made below for the landlord to pay the resident the £50 already offered and an additional £150 compensation in relation to this issue.

Resident’s queries about a contact arrangement and request for reasonable adjustments

From the records provided, it is not clear whether the landlord was aware that the resident was dyslexic. The resident told this service and explained why he had requested a reasonable adjustment in relation to this. While there is no record that he gave this specific information to the landlord, he did request the adjustment because of his “disability”, and so it would have been appropriate for the landlord to make further enquiries about this so it was not aware of the specifics. Having this information would have allowed the landlord to properly consider the request and make a fair and informed decision. The landlord’s failure to do so meant that it could not properly consider the request and therefore, did not have due regard for its responsibilities under the Equality Act. This amounts to maladministration and an order has been made below for the landlord to confirm the specific nature of the resident’s disability with him and update its records so this is centrally recorded to inform its service delivery going forward.
The resident raised these queries on 1 October 2021 and chased a response that same month. The landlord advised in the stage 1 response that answers would be provided at the appeal hearing; however, the resident asked for the responses prior to the appeal hearing to give him time to review this and prepare. This was reasonable and even more important considering the resident’s vulnerability. When the resident explained this to the landlord in his escalation request, there is no record that it responded or provided any of the additional information requested. It was reasonable that the resident would want to fully understand how the landlord had reached its decision and the process it had followed to implement the contact arrangement before attending the appeal hearing. Therefore, it should have provided answers to these queries in advance of the hearing. Its failure to do so was unfair and left the resident feeling uncertain about how the landlord had reached its decision. Despite the resident raising this as a formal complaint and being reassured that it would be addressed as part of the stage 2 response, it was not and this would have left him feeling ignored and as though it had not taken his concerns seriously.
When considering the landlord’s equality, diversity and inclusion policy around how the landlord determines whether a requested adjustment is ‘reasonable’; in this case, it is the view of the Ombudsman, that the resident’s request was reasonable. It would have taken time for the landlord to prepare the requested information in the desired format and this would have impacted on its resources. However, the purpose of this was to enable the resident to fully understand how it reached its decision and the process for this. This was particularly important considering his vulnerability, and that he needed time to review and prepare for the hearing. Considering the landlord was changing how it delivered its services to the resident, it should have fully explained how it reached its decision. As the landlord failed to provide this information in the requested format in advance of the hearing, it is the view of the Ombudsman that it did not comply with its equality, diversity and inclusion policy as it did not make a reasonable adjustment for the resident.
Organisations are only obliged to make adjustments when it is reasonable to do so. Ultimately, it is for the courts to determine whether any adjustments (requested or provided) are reasonable. However, the Ombudsman can investigate whether a landlord has properly considered whether the adjustments are practicable and if they would overcome the disadvantages experienced by the disabled person. The Ombudsman may conclude there was maladministration if a landlord cannot demonstrate it properly considered whether adjustments were reasonable or should be made. What is reasonable depends on a number of factors, including the resources available to the organisation making the adjustment. This does not mean “without affecting its resources” as set out in the landlord’s policy. An order has been made below for the landlord to review its equality, diversity and inclusion policy to ensure it is consistent with the Equality Act and to provide staff training on the updated policy.
Overall, there was maladministration in the landlord’s handling of this issue. The landlord may not have been aware that the resident was dyslexic; however, it had the opportunity to gather the specific information from the resident when he asked for a reasonable adjustment, and should have done so. This meant that it did not have all the relevant information to make a fair decision. When the resident asked the landlord to provide the information in a specific format in advance of the appeal hearing, it failed to do so. This would have left him feeling uncertain about how and why it reached its decision. While providing this information would have impacted the landlord’s resources, it was reasonable of the resident to ask for this before the hearing and in a specific format. The landlord’s failure to provide this meant that it did not comply with its equality, diversity and inclusion policy in respect of making reasonable adjustments for the resident. Despite agreeing to address this concern within its stage 2 response, the landlord failed to do so, which would have left the resident feeling ignored and as though it was not taking his concerns seriously. Orders have been made below for the landlord to apologise and pay the resident £350 compensation. It is not clear whether the contact arrangement remains in place or whether the queries raised on 1 October 2021 remain outstanding, therefore, a recommendation has been made below for the landlord to provide a response to these queries if required.

Complaint handling

The landlord provided its stage 1 response in 11 days, which was a minor delay. It provided its stage 2 response in 51 days; which was significantly over its committed response time. However, it provided updates at 29 and 47 days to advise that the response would be delayed and provided an updated timeframe, which was appropriate. The reason for the delay was due to the unavailability of a resident reviewer but as the resident had specifically asked for them to be included in the process, it was appropriate for the landlord to ensure this happened.
The stage 1 response was provided by the senior housing officer; however, as the complaint was about the lack of response from the senior housing officer, it was inappropriate that they investigate the complaint. The Ombudsman’s Complaint Handling Code (the Code) at the time said that landlords should ensure that it took measures to address any actual or perceived conflict of interest as part of complaint investigations. While the landlord’s complaint policy set out how it would do this, in this case, that did not happen, which was unfair to the resident and meant that his complaint was not investigated objectively.
While the landlord identified service failure at stage 1, it did not respond to the resident’s specific concerns and so failed to put things right at an early stage. While it responded to these points at stage 2, it failed to include additional issues raised within the escalation request, that it had committed would be responded to. Not fully responding to the resident’s concerns meant that he was left feeling dismissed and not taken seriously. He also took additional time and trouble to follow up with the landlord to chase a response to the outstanding issues after it had provided its stage 2 response. When he suggested the landlord speak with another member of staff to identify what issues remained outstanding, it did not respond to this and advised him his complaint was closed. This was dismissive and suggested that it did not want to put things right.
Overall, there was maladministration in the landlord’s complaint handling. Its response was delayed and the stage 1 investigation lacked objectivity, which meant the resident was treated unfairly. It failed to respond to his specific concerns at both stages, which meant it failed to put things right at an early stage and left him feeling dismissed and not taken seriously. The landlord acknowledged in its final response that there had been a delay in its complaint handling and apologised for this, which was reasonable; however, there is no record that it considered any other redress and in light of the additional issues identified, it is the view of the Ombudsman that this is required. Orders have been made below for the landlord to pay the resident £300 compensation and provide staff training on its complaint policy and the Code.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s:
1. Response to the resident’s request to attend an appeal hearing with a representative.
2. Handling of the resident’s queries about a contact arrangement and request for reasonable adjustments.
3. Complaint handling.

Reasons

The landlord’s response to the resident’s request to attend an appeal hearing with a representative was delayed. It only provided a response after the resident had chased it 5 times and raised a formal complaint. It did not provide updates on its progress of considering the request, which left the resident feeling ignored. It said it would not provide an answer to this request until after he had given suggested dates for the appeal hearing, which was inappropriate.
The landlord did not respond to the resident’s queries about the contact arrangement and failed to make reasonable adjustments in respect of when and how it provided the requested information. It was aware the resident was disabled and while it may not have known the specifics of this, it should have asked for this information to make a fair and informed decision. It did not comply with its equality, diversity and inclusion policy, which left the resident feeling ignored and as though his concerns were not important.
The landlord’s complaint handling was delayed and failed to address all of his concerns. It did not comply with its policy in respect of who carried out the stage 1 investigation, which meant it was not objective and this was unfair to the resident. The landlord apologised for the delay but failed to consider any other redress required to put things right.

Orders and recommendations

Orders

Within 4 weeks, the landlord is ordered to:
1. Pay the resident £850 compensation, made up of:
  1. £50 already offered for its delayed response to his request to attend an appeal hearing with a representative.
  2. An additional £150 for its response to his request to attend an appeal hearing with a representative.
  3. £350 for its handling of his queries about a contact arrangement and request for reasonable adjustments.
  4. £300 for its complaint handling.
2. Confirm with the resident the specific nature of his disability and any reasonable adjustments required and update its records accordingly.
3. Apologise to the resident for its handling of his queries about a contact arrangement and request for reasonable adjustments.
The landlord to provide evidence of compliance with the above orders to this service within 4 weeks.
Within 6 weeks the landlord is ordered to:
1. Review its equality, diversity and inclusion policy to ensure it is consistent with the Equality Act, specifically around reasonable adjustments and the effect of these on its resources. On completion of the review, staff training to be provided on the revised policy.
2. Provide staff training on its complaint policy and the Ombudsman’s Complaint Handling Code.
The landlord to provide evidence of compliance with the above orders to this service within 6 weeks.

Recommendations

The landlord to provide a response to the resident’s queries about the contact arrangement raised on 1 October 2021, if still required.
The landlord to notify this service of its intentions regarding the above recommendation within 4 weeks.