SLOUGH BOROUGH COUNCILS HOUSING SERVICE COMPLAINTS REMEDIES AND COMPENSATION POLICY

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1 SLOUGH BOROUGH COUNCILS HOUSING SERVICE COMPLAINTS REMEDIES AND COMPENSATION POLICY PART ONE GENERAL FRAMEWORK Background Slough Borough Councils Housing Service has reviewed its Compensation Policy. The revised policy is based on the Local Government s Ombudsman s Remedies Guidance. Purpose The policy sets out the guidelines Slough Borough Councils Housing Service will follow when considering remedies for justified complaints. The aim of the guidelines is to promote consistency in dealing with complaints and offering remedies. Each case has to be considered on its own merits in the light of the particular circumstances, but as far as possible broadly similar complaints, if justified, should receive broadly comparable remedies. General Principles The remedy needs to be appropriate and proportionate to the loss suffered by the complainant. It should, as far as possible, put the complainant in the position he or she would have been in but for the service failure. Financial compensation will only be considered where no practical action can be identified that would remedy the adverse effect that has been caused by the service failure. Slough Borough Councils Housing Service does not have the authority to grant rent waivers, or reductions in a tenant s rent. This authority remains within Slough Borough Council Chief Executives department, though the Housing Service can recommend this course of action. Compensation will only be offered on the authority of a member of Slough Borough Councils Housing Service Senior Management Team or on the recommendation of Slough Borough Councils Housing Service Complaints Panel. Officers should not indicate that compensation may be payable until a complaint has been thoroughly investigated.

2 Before offering compensation to a complainant an authorised officer must ensure that the complaint is not a potential legal or insurance issue. If any of the following circumstances arise the complaint must be referred to Slough Borough Councils Housing Service Legal or Insurance advisors. 1. The complainant suggests that they or a member of their household, have suffered a personal injury as a result of something Slough Borough Councils Housing Service or its agents (e.g. Interserve) has done or not done. 2. The complainant has suffered a financial loss as a result of something Slough Borough Councils Housing Service or its agents has done or not done. 3. The complainant feels that they have suffered a loss of reputation as a result of something Slough Borough Councils Housing Service or its agents has done or not done. Apology Wherever it can be demonstrated that there has been a service failure Slough Borough Councils Housing Service will offer an appropriate apology. In some cases an apology will be all that is required. Issues to be considered in deciding a remedy There are a number of elements that should be considered in deciding an appropriate remedy. Practical actions a) Would some practical action provide all or part of a suitable remedy? (e.g. the action required might be to: effect the necessary repairs to a complainant s house or offer a transfer of accommodation). b) Is there an appropriate action that would mitigate the complainant s problem (e.g. sound proofing to address noise nuisance) c) Consideration should always be given to any practical action which the complainant might suggest this could include imaginative solutions not directly related to the problem. d) The action may depend on some prior action it may be necessary for instance to inspect a property and assess whether the some further action is required Financial Compensation

3 Financial compensation may be appropriate if, for example: a) Slough Borough Councils Housing Service has taken the appropriate action but has delayed in doing so with detrimental effect on the complainant b) there is no practical action which would provide a full and appropriate remedy; c) the complainant has sustained financial loss d) or has suffered stress and anxiety. Factors to be considered in deciding the level of compensation a) The effects of the complainant s own action. e.g: where delay in dealing with the matter was partly the fault of the complainant and partly the fault of Slough Borough Councils Housing Service where the complainant has not taken action to mitigate the effect of the failure and could reasonably have been expected to do so where the complainant has not taken advantage of an available benefit where the actions of the complainant were unreasonable for example by pursuing a complaint in unnecessary and excessive detail b) Any money due to the complainant that has not been paid In which case a sum will be included in the calculation representing the unpaid money c) Any costs the complainant may have incurred which would not be necessary but for Slough Borough Councils Housing Service failure in which case reimbursement will be made in whole or in part providing that it is considered reasonable for the complainant to have incurred those costs and that they arise directly from Slough Borough Councils Housing Service s maladministration. d) Loss of a non monetary benefit that the complainant should have received e.g. inability to use a room in the house due to an outstanding repair; or difficulty in accessing property because fob key was faulty or not available. The loss of a non monetary benefit will be calculated with regard to: What it would have cost Slough Borough Councils Housing Service to deliver the service that was not given to the complainant The value People 1 st put on the facility (e.g. a proportion of the assessed rent for the property related to the loss of one room for instance) Where no objective assessment is available a reasonable broad assessment will be made 3 V th June 2010

4 e) Loss of value - Where something owned by the complainant has lost value, an objective assessment of the loss may be possible, assessed where appropriate by an independent valuer. f) Lost opportunity - Sometimes the injustice may be that the complainant was deprived of an opportunity. For example, the complainant may have been deprived of a right of appeal because the authority did not inform him or her of that right. This may be a relatively small sum as in most cases it is only the loss of the opportunity which is certain and the actual outcome which would have occurred cannot be known. g) Distress - Compensation may be considered for what might generally be characterised as distress (including stress, anxiety, frustration, uncertainty, worry, inconvenience or outrage). This needs to have regard to all the circumstances including: the severity of the distress; the length of time involved; the number of people affected (for example, members of the complainant s family as well as the complainant); whether the person affected is vulnerable and affected by distress more severely than most people; and any available professional opinion about the effects on the individual. This element may be a moderate sum of a few hundred pounds or less. But in cases where the distress has been severe and/or prolonged, a more substantial sum may be justified. h) Time and Trouble - Consideration should be given to the question of whether a payment should be included for the time taken and the trouble the complainant has incurred in pursuing the complaint. This should not be confused with the issue of distress identified above. i) Offsetting Compensation - In circumstances where the complainant owes money (for example, for rent arrears), it would usually be appropriate to take that point into account. So if the compensation is the lower of the two amounts it would be offset against the debt. If the compensation is greater than the debt it could be used partly to pay the debt with any balance paid to the complainant. j) Interest - Slough Borough Councils Housing Service will not normally consider an interest calculation in the calculating compensation payments. PART TWO REMEDIES RELATED TO SPECIFIC SERVICE AREAS

5 A) REPAIRS Consideration should be given to all the potential elements in a remedy as defined in Part I. The elements which are most likely to be relevant are as follows. There will often be a situation where the problem is still continuing and the council should take some specific action to deal with it. It is possible that the complainant will still be waiting for one or more of the following: assessment to determine the cause of a problem (for example damp, or a leaking roof), so that effective remedial action can be taken; repairs to be carried out or completed; previous defective workmanship to be brought up to a satisfactory standard; damage caused by contractors carrying out repairs to be put right; or assessment of an insurance claim for damaged possessions. Depending upon the particular circumstances of the case, the complainant s work may need to be given priority or it may be appropriate to recommend the tenant for priority transfer to another property. Where financial compensation is appropriate the following considerations will apply: a) Delays in Completing Repairs (Right to Repair) The right to repair is a contractual right given to all tenants in accordance with the Citizen s Charter scheme. It allows tenants the right to take action where certain small urgent repairs which might affect health, safety or security, are not completed within published response times. Slough Borough Council contracted out their repairs service to Interserve. Interserve are responsible for carrying out repairs within specified time limits, if Interserve fail to keep to the original timescales, they will advise the tenant of a second appointment time. If the repair is still not completed within the revised timescale the tenant is entitled to claim compensation of 10 plus 2 per day for every day the repair remains outstanding up to a maximum of 50. To qualify for any payment, the following must apply: 5 V th June 2010

6 The repair must be an emergency or urgent repair that affects health, safety or security of the tenant Slough Borough Councils Housing Service must be responsible for the repair Compensation will not be payable if: Either or both of the criteria listed above are not met The repair was needed because of damage caused by the tenant The tenant had not informed Interserve that the repair was needed The tenant failed to provide access or make an appointment with the Contractor The claim is for Improvements b) Loss of Amenity Where any part of the dwelling or it s major amenities are unusable by the tenant (as a result of either delayed repairs or major building work) compensation may be payable. Payment for a delayed repair will only be considered if the repair is outside the timescales specified in the contract with Interserve. Payment will also take into account any benefit or payment the tenant may be receiving. Compensation to be recommended to Slough Borough Council for approval will be as follows: Loss of complete heating 10% of the weekly rent once contractual timescales have been exceeded, provided no reasonable substitute was offered by Slough Borough Councils Housing Service. Compensation for loss of heating is excluded between 1 June and 30 September Hot Water System 10% of the weekly rent once contractual timescales have been exceeded, provided no reasonable substitute was offered by People 1 st Slough. Loss of Kitchen 25% of the weekly rent once contractual timescales have been exceeded Loss of drinkable water - 10% of the weekly rent once contractual timescales have been exceeded, provided no reasonable substitute was offered by People 1 st Slough.

7 Bathroom 25% of the weekly rent once contractual timescales have been exceeded (reduced to 15% if a separate WC is available) Living Area 20% of the weekly rent once contractual timescales have been exceeded Bedrooms 20% of total weekly rent payable once contractual timescales have been exceeded (irrespective of the number of bedrooms affected) Where programmed maintenance works have been pre-arranged and advance notification has been given to the tenant (allowing alternative arrangements to be made), the qualifying periods for loss of bathroom / kitchen will be increased to 96 hours (4 days). c) Economic Loss (e.g. loss of income, annual leave etc) If a pre-arranged appointment is broken by Slough Borough Councils Housing Service without giving the tenant reasonable notice then the tenant may claim the following: Loss of income (based on average earnings) Annual leave (to the equivalent sum as income) Any related expenses that may result directly from the broken appointment Compensation in these circumstances will be paid so long as the following criteria have been met: The appointment was formally arranged with the resident, i.e. in writing The tenant informed Slough Borough Councils Housing Service that the consequences of breaking the appointment would result in economic loss Evidence is provided showing that there has been an economic loss. (e.g. employers declaration) Compensation will not be paid if: The tenant was advised as soon as Slough Borough Councils Housing Service was aware that the appointment could not be kept and an alternative appointment was arranged within 7 working days. 7 V th June 2010

8 d) Damage to Tenants Property Where a claim for damage or loss is made, the tenant will be visited within 14 days to assess the damage or loss incurred. A Compensation Claim form must be completed in all cases. Compensation will not be paid where: Any damage has occurred as a result of disrepair or neglect by the tenant Slough Borough Councils Housing Service has not been negligent, i.e. where it could not have foreseen that an item needed repair There has been no breach of the terms of the tenancy Claims over 1,000 will be referred to Slough Borough Councils Housing Service insurers. Where Slough Borough Councils Housing Service is found to be liable the insurers will settle directly with the tenant. Where claims under 1,000 are considered, any compensation payment will take into consideration the age and value of any items damaged. If damage has occurred due to Slough Borough Councils Housing Service contractors carrying out work, provided the contractor has been correctly appointed, Slough Borough Councils Housing Service would not normally be liable and the matter will be referred to the contractor for referral to their insurers. However, Slough Borough Councils Housing Service will try to ensure that the contractor deals fairly with any claim and, where appropriate, reaches a fair and reasonable settlement with the tenant. e) Damage to Decorations Where tenant s decorations are substantially damaged in the process of carrying out a repair, every effort will be made to match existing decorations. Where decorations can not be matched a fixed decoration allowance will be considered up to a maximum of 50. f) Tenant Improvements Where a tenant ends their tenancy, Slough Borough Councils Housing Service may compensate for any substantial improvements (as listed in Appendix 2) made to the home after 1 April 1994, so long as: Permission had been requested in writing from Slough Borough Councils Housing Service to allow the improvements to be undertaken Slough Borough Councils Housing Service had granted permission for the complete works

9 Three quotes from contractors had been obtained and copies sent to Slough Borough Councils Housing Service The improvements complied with statutory approvals, i.e. buildings, electrical, planning and any other relevant regulations A final invoice had been sent to Slough Borough Councils Housing Service The tenants agreed to allow an Slough Borough Councils Housing Service Surveyor to inspect the property The improvement has been maintained A claim will not be considered if: The tenant is buying their home through the Right to Buy scheme The tenancy is terminating because of legal action taken by Slough Borough Councils Housing Service to recover the premises Any claims for compensation for improvements must be made to Slough Borough Councils Housing Service within 42 days of the beginning of the four week end of tenancy notice period. Claims made outside of this date will not be considered. All improvements will be inspected by a surveyor. The amount payable is subject to an assessment of condition and will be calculated by taking the original cost of work and reducing this by the number of years the improvement has been in place to the maximum lifespan indicated in Annex 1. The sums indicated are subject to work being maintained in decent condition. The maximum amount payable will be 1,500. B) NEIGHBOUR NUISANCE f) Consideration should be given to all the potential elements in a remedy as defined in Part I. It is likely that, at the time of a complaint, the problem is still continuing so the most appropriate remedy will be to take some specific action to deal with it. Appropriate actions are defined in Slough Borough Councils Housing Service Harassment and Anti Social Behaviour procedures and may include issue of an abatement notice in respect of a statutory nuisance or the seeking of an injunction. 9 V th June 2010

10 If the problem is of long standing and difficult to resolve it may be appropriate to offer the complainant a transfer. The Ombudsman recommended an immediate transfer in one case for a council tenant who was prone to depression. He lived directly beneath a mentally ill and abusive woman, who would not accept a transfer herself in accordance with the council s usual policy, and the Council was reluctant to evict her because of her vulnerable status. Where financial compensation is considered the following factors will be particularly relevant. a) The effect of the complainant s own actions will need to be taken into account. It is reasonable, and indeed necessary, for Slough Borough Councils Housing Service to establish the extent and frequency of the alleged neighbour nuisance before taking action. However, the complainants may not have carried out monitoring and reporting as requested by ASB officers, such as completing diary sheets, thus hindering the resolution of their complaint and prolonging their own ordeal. Alternatively, there may have been an element of reciprocity contained within the neighbour nuisance problem which made it more difficult for Slough Borough Councils Housing Service to resolve quickly. b) Quantifiable loss - People who experience neighbour nuisance are sometimes driven to vacate their own homes and stay with family or friends until the problem is resolved. Where the Slough Borough Councils Housing Service delays unjustifiably in taking action in a case of neighbour nuisance, it may be appropriate to consider reimbursement of additional living expenses incurred by the complainant in escaping the nuisance. Alternatively some element of rate rebate may be appropriate. c) Distress - is the most common feature of neighbour nuisance cases and will always be relevant to a greater or lesser degree. Some element of financial compensation will usually be applicable and the calculation of this needs to reflect a number of factors, of which the following are examples (although not an exhaustive list). The length of time for which the neighbour nuisance persisted before the Slough Borough Councils Housing Service took effective action. The severity of the neighbour nuisance. The frequency of occurrence. The number of people affected in the property in addition to the complainant. The vulnerability of the complainant, or any other people affected (for instance, they may be elderly, disabled or children).

11 The extent of the Slough Borough Councils Housing Service maladministration. While the degree of distress in neighbour nuisance cases does vary, it can often be very severe, and may sometimes persist over a long period. Substantial compensation may sometimes be appropriate. 18 The level of compensation for distress needs to be carefully assessed in the light of all the circumstances of the individual case. Because these do vary significantly, the guideline has to be broad, but generally it is likely that the appropriate sum would be in the range of 500 to 2,000 for a year, with broadly pro rata sums for shorter or longer periods. However a careful assessment of the facts may, on some occasions, point to sums above or below that range. It is possible that severe distress may be caused over quite a long period of time without Slough Borough Councils Housing Service necessarily having acted with maladministration. Guidance accepts that housing organisations may have conflicting duties which cannot be quickly or easily resolved. For instance, this may be so in the case of mentally ill tenants whom the council has a duty to house because they are vulnerable. In such cases courts may be reluctant to grant eviction orders. The perpetrator of the nuisance may not be willing to move voluntarily and, even if he or she is, or if the victim of the nuisance is willing to be moved, Slough Borough Councils Housing Service may not immediately be able to provide suitable alternative accommodation. However great the distress caused to the complainant, the test can only be whether Slough Borough Councils Housing Service dealt with the problem fairly and properly. d) Professional fees - In exceptional cases legal fees incurred by the complainant may need to be considered. In one case where the complainant and his family suffered racial harassment for 11 years without the council taking their complaints seriously, the Ombudsman recommended the reimbursement of all reasonable legal fees incurred by the complainant in pursuing his complaint with the council. e) Time and trouble - Consideration should be given to the question of whether a payment for time and trouble in pursuing the complaint should be included. However, the fact that the complainant was required to expend considerable effort in monitoring and reporting may not of itself be completely the consequence of any maladministration by Slough Borough Councils Housing Service. Complainants can reasonably be expected to co-operate with Slough 11 V th June 2010

12 19 1 Borough Councils Housing Service in taking appropriate action. Compensation becomes relevant only where Slough Borough Councils Housing Service has not progressed the matter as it should and the complainants are put to additional effort in order to persuade or enable the Slough Borough Councils Housing Service to proceed.

13 PART THREE TIME AND TROUBLE PAYMENTS Where complaint has taken a long time to resolve consideration of the remedy should normally include consideration of whether an element of compensation should be included in respect of the time a complainant takes, and the trouble he or she incurs, in making the complaint. Anyone pursuing a complaint can normally be expected to incur a certain amount of time and trouble and minor costs. A time and trouble payment will not therefore be appropriate in every case. It should be made only where it can be justified on the basis that the facts of the case show that time and trouble and minor costs for the complainant were more than would routinely be required for pursuing a complaint. A time and trouble payment, where appropriate, should be some compensation for time and trouble reasonably and legitimately expended in pursuing the complaint and minor items of expenditure and financial loss which are not otherwise taken into account in the compensation recommended. Time and trouble payments would normally fall within the range of 50 to 250, and the amount should be determined in the light of the facts of the case. In exceptional cases a higher amount could be involved. In the assessment of the time and trouble payment, consideration should be given to all relevant factors in the case. These may include: the passage of time, including response times by Slough Borough Councils Housing Service in relation to the nature of the problem; the amount of time and effort which the complainant had to devote; difficulty experienced by the complainant in dealing with Slough Borough Councils Housing Service the degree of inadequacy in the response of the authority to letters, phone calls and visits;52 the level of minor or generally unquantified expenses incurred by the complainant (such as significant post or telephone costs, travel costs) Care should be taken to distinguish, on the one hand the factors which affect the time and trouble payment and, on the other hand the elements of injustice broadly characterised as distress (including stress, anxiety, frustration, uncertainty, worry, inconvenience, etc). These are different concepts and should not be confused. 13 V th June 2010

14 COMPENSATION CHART Compensation for: Conditions & Guidance Suggested Level of Compensation Distress Compensation may be considered for what might generally be characterised as distress (including stress, anxiety, frustration, uncertainty, worry, inconvenience or outrage) per week of failure by the service ( per year) dependent on severity of distress and at officers discretion. Time and trouble Anyone pursuing a complaint can normally be expected to incur a certain amount of time and trouble and minor costs. Time and trouble payments will not be appropriate in every case. They will only be made if time, trouble and minor costs for the complainant were more than would routinely be required per week of exceptional activity Failure to respond to correspondence Harassment/ Neighbour Nuisance/ ASB NOSP or possession hearing pursued incorrectly Resident incorrectly evicted Failure to respond to correspondence will not warrant compensation on its own but may be considered as an aggravating factor in relation to a related complaint. Only payable if People 1 st has failed to take action. 5 per letter to a maximum of 50 (People 1 st will not make payments of less than 10 as these are regarded as insulting) per week of inactivity by People 1 st depending on the severity of the case.(see also Part 2 guidance) 100 (plus refund of any legal or associated costs) 500 plus all relevant costs (e.g. legal, removal, reconnections, storage and temporary accommodation)

15 Compensation for: Conditions & Guidance Suggested Level of Compensation Delay in completing repairs (right to repairs) Interserve are responsible for carrying out repairs within specified time limits, if Interserve fail to keep to the original timescales, they will advise the tenant of a second appointment time. If the repair is still not completed within the revised timescale the tenant is entitled to claim compensation. 10 plus 2 per day for every day the repair remains outstanding up to a maximum of 50. Loss of Amenity Late provision of or faulty fob keys limiting access to property through communal areas. Where any part of the dwelling or it s major amenities are unusable by the tenant (as a result of either delayed repairs or major building work) compensation may be payable. Payment for a delayed repair will only be considered if the repair is outside the timescales specified in the contract with Interserve. There is a 7 day timescale built into the existing contract compensation will only be paid where the timescale is exceeded. Loss of complete heating 10% of the weekly rent Hot Water System 10% of the weekly rent Loss of Kitchen 25% of the weekly rent Bathroom 25% of the weekly rent Living Area 20% of the weekly rent Bedrooms 20% of total weekly rent Faulty or late fob key 10% of the weekly rent + In exceptional cases (i.e. if the property were totally inaccessible) - any related expenses that were necessarily incurred & can be appropriately evidenced. 15 V th June 2010

16 Compensation for: Conditions & Guidance Suggested Level of Compensation Economic Loss (e.g. loss of income, annual leave etc) If a pre-arranged appointment is broken by Slough Borough Councils Housing Service without giving the tenant reasonable notice then the tenant may claim the following: Loss of income (based on average earnings) Annual leave (to the equivalent sum as income) Any related expenses that may result directly from the broken appointment Compensation for loss of income/ leave up to a maximum of one day per appointment. Garage repairs Damage to tenants property Where a tenant is unable to access their garage due to vandalism or disrepair and it can not be repaired within timescales specified in the maintenance contract. Slough Borough Councils Housing Service will terminate, or suspend, the tenancy and offer the complainant an alternative garage. Where a claim for damage or loss is made, the tenant will be visited within 14 days to assess the damage or loss incurred. A Compensation Claim form must be completed in all cases. It is not Slough Borough Councils Housing Service policy to refund garage rents. Assessed amount (allowing for wear and tear) up to a maximum of 1,000. Claims over 1,000 will be referred to Slough Borough Councils Housing Service insurers.

17 Compensation for: Conditions & Guidance Suggested Level of Compensation Damage to decorations Where tenant s decorations are substantially damaged in the process of carrying out a repair, every effort will be made to match existing decorations. Where decorations can not be matched a fixed decoration allowance will be considered up to a maximum of 50. Max 50 Tenant Improvements Where a tenant ends their tenancy, Slough Borough Councils Housing Service may compensate for any substantial improvements made to the home after 1 April 1994, - subject to conditions outlined on pages 7-8. Max 1, V th June 2010