Brent Council (202101477)

REPORT

COMPLAINT 202101477

Brent Council

11 October 2022

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

This complaint is about the landlord’s handling of the resident’s concerns that adaptation works to convert her garage into a bedroom did not meet building control requirements.

Background and summary of events

Background

The resident is a tenant whose tenancy agreement began on 21 March 1988. The property is a terraced house and the landlord is a local authority.
The resident is disabled and has a number of serious health conditions, including lupus, severe erosive arthritis and secondary Reynaud’s disease.
The tenancy terms and conditions booklet shows that the landlord is responsible for maintenance and repair of the structure of the property and keeping fittings for supply of electricity in proper working order.
The landlord has a complaints policy that sets out a two-stage process where it is required to respond within 20 working days (at stage one) and 30 working days (at stage two) respectively. It adds that it follows the Ombudsman’s Remedies Guidance for its complaint remedies.
During early 2019, the landlord agreed to carry out various adaptation works to the resident’s property. The works were managed on behalf of the landlord’s housing management team by the private housing services team, which carries out adaptation works as part of the landlord’s wider statutory duties in relation to providing grants for disabled residents in its area.
The landlord’s records show that a referral for replacement of an existing stairlift was originally made in February 2019 and that this was under its remit as a landlord as the works should have been arranged prior to an internal shift in responsibility for adaptations. A subsequent survey led to a decision to also convert the resident’s garage into a bedroom.
The resident has alleged that the landlord’s handling of the garage conversion has worsened her health conditions. This Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. The resident may be able to make a personal injury claim against the landlord if she feels her health has been affected by its actions or inactions. However, consideration has been given to the general distress and inconvenience caused to the resident by this matter.

Previous Ombudsman investigation

The Ombudsman previously determined a complaint from the resident under case reference 201909949. This was originally determined on 30 November 2020 and a review determination was made on 2 June 2021. The Ombudsman considered the landlord’s handling of certain aspects of the adaptation works that were undertaken to the resident’s property during mid-2019 to early 2020, including the replacement of a front door and installation of automated door and window openers.
The Ombudsman determined that there had been service failings by the landlord in its management of these works but that it had offered reasonable redress to these, including through its £750 compensation award.
This investigation will not review further the complaint that was determined last year but is instead focused on the separate concerns raised by the resident regarding the garage conversion that was completed as part of the wider adaptation works.

Summary of Events

The resident followed up a meeting she had with the landlord on 2 December 2019, advising that she had raised concerns with it about its stance that planning permission for the garage adaptation had been unnecessary and querying whether a building control completion of works certificate was available.
The landlord and its contractor exchanged emails during early December 2019 – these show that the latter had assumed the former was submitting necessary paperwork and the former believed that the latter was responsible.
A building notice regularisation application was made on behalf of the landlord on 3 December 2019 for approval of unauthorised works (which occurred from August 2019) that had been undertaken to convert the garage into a bedroom.
The resident and landlord met at her property during mid-December 2019 and the former again raised concerns about the lack of building notice approval, specifically with regard to the quality of a window installation.
The landlord asked its contractor in mid-December 2019 and mid-January 2020 if it could make payment of a building control fee that was needed for a building control completion certificate.
The landlord and its contractors exchanged emails during June 2020 that show that the resident had raised concerns about various aspects of the property adaptations and whether a rear door (that was not part of the recent adaptations) met building regulation requirements. This led to a visit to the property on 2 July 2020.
The landlord’s records show that it liaised with its contractor on 3 July 2020 and obtained agreement that they would pay the building control fee.
The landlord’s records show that building control reviews were conducted in August 2020, following the exposure of walls and a ceiling. This noted that there were points to be addressed, including the installation of insulation between joists to the floor and ceiling (once a damp proof membrane was applied), an escape window fitting and a regularisation application for electrical works.
The landlord, its contractor and the resident exchanged emails during August-September 2020. These show that:
1. there was discussion as to which staff members would be involved;
2. the landlord confirmed that an electrical regularisation application was necessary and would lead to a safety inspection;
3. the landlord advised the resident that she would need to be away from the property during remedial works due to the smell of the damp proof product but the resident had expressed concern about a move as she had no place to go to that was adapted for her needs and respite care facilities were unsafe due to Covid-19.
The resident submitted a complaint to the landlord on 9 October 2020. She acknowledged that she had a previous complaint that was in the process of being assessed by this Service but separately alleged that:
1. the landlord had not obtained planning permission or building control advice on the 2019 garage conversion;
2. now building control had attended, remedial works had been identified which meant she needed to vacate the property for two to three weeks;
3. this would be very difficult for her given her ongoing recovery from a life-saving operation and Covid-19 shielding status.
An electrical installation condition report was produced following an inspection on 19 October 2020. This showed that the installation was unsatisfactory with three urgent remedial recommendations and one improvement recommendation made.
The landlord and the resident exchanged further emails during October-December 2020. These show that:
1. the landlord reassured the resident that she did not need to worry about social care payments and it was exploring accommodation possibilities with social services;
2. the landlord was looking to place the resident in “a self contained flat with a fully adapted bathroom… where there are carers on site” and that it would help put her cat in a cattery of her choice;
3. the landlord acknowledged that the resident would not be able to bring her own carer but reassured her that carers would be Covid-19 tested;
4. the landlord discussed the electrical report with the resident, offering explanations of each fault and who would resolve them and asking if the resident could allow access for this.
The landlord also wrote to its lift installer during November 2020, drawing their attention to the recommendation that had been made, following the electrical inspection, for a through floor lift cable to be placed within the consumer unit.
The landlord issued a stage one complaint response to the resident on 2 December 2020. It concluded that:
1. planning permission for the garage conversion had not been necessary as the works were carried out as ‘permitted development’ but they should have been conducted under a building notice;
2. the works were carried out under a standard ‘design and build’ contract with a contractor who had checked and established that this was the only property where they had made the mistake of not applying for a building notice;
3. it had been unable to interview the foreman responsible as he had since left the contractor’s employment;
4. a retrospective ‘regularisation’ building notice was registered and highlighted that some remedial works were needed to increase insulation, upgrade electrical wiring and increase a window size;
5. these works would require the resident to temporarily vacate the property and its grant manager was liaising with the resident on this;
6. it awarded £1500 compensation and advised that its new contract arrangements would remove the responsibility for design and management of adaptations from the contractor (with its private housing surveyors instead taking on this role).
The landlord’s records show that it followed up with its lift contractor in March 2021, regarding the electrical issue it raised with them in November 2020. The lift contractor advised that the resident had refused access.
The landlord issued a final complaint response to the resident on 19 March 2021. It concluded that:
1. as the garage conversion works were permitted development, planning permission was not needed but its contractor (appointed through its private housing services team) was responsible for ensuring all necessary planning and building control applications were completed;
2. the building control permission had not been sought for which it apologised that this meant additional works were necessary;
3. it had checked other works that the contractor was involved in but it unfortunately appeared that the error was only made with the resident’s property;
4. the contractual arrangement was shortly due to change so that the design and management of adaptations was done by ‘in house’ surveyors rather than the contractor;
5. the resident needed to be decanted to allow remedial works which it confirmed involved increasing the insulation in the conversion, upgrading electrical works and increasing the size of a bedroom window;
6. it acknowledged the impact of this matter on the resident over the previous 16 months and increased its compensation award to £4800;
7. its grants manager was in contact with the resident and they were looking for a suitable place for the resident to stay in the interim (that allowed her to be “reasonably shielded against Covid-19”) while remedial works were done.
The landlord exchanged emails with the resident’s support worker during April-June 2021. These show that:
1. it noted that works had not progressed due to the increase in Covid-19 infection rates but that it was ready to proceed and had found “a ‘step-down’ facility which is a flat with level access showering facilities and its own kitchen and carers on site” for the resident to temporarily stay in if she was willing;
2. it offered reassurance on the type of liquid damp proof membrane product used and that the resident would not be subject to any additional care costs during the stay in temporary accommodation;
3. it answered questions from the resident about the type of facility and care available and said she would be able to view it in advance;
4. it confirmed that remedial works would take two weeks.
The resident raised continued concerns with the landlord on 18 June 2021 on the grounds that:
1. she did not agree that the contractor surveyor was responsible for the error and that the project leader (or grants supervisor) should have overseen this;
2. the landlord had failed to urgently address the situation in light of her severe medical conditions;
3. she notified it of the lack of permissions in October-November 2019 but it had failed to pay a ‘late fee’ which it later said was due to the internal payment system not recognising such a small amount of money;
4. she needed reassurance on the standard and timescale for remedial works, particularly given she would be exposed to increasing Covid-19 in the community while the works were ongoing;
5. she did not agree that £4800 compensation was adequate given the extreme distress and inconvenience the matter had caused and made a £12000 proposal instead.
The landlord exchanged emails with the resident during July-August 2021. These show that:
1. the landlord passed on more information to the resident about the damp proof product and proposed which surveyor and building control officer would be involved;
2. the landlord and resident discussed her cat staying with her and agreed for taxi costs to be funded so her carer could travel to her;
3. the landlord provided more details about the facility that had been proposed for the resident’s temporary stay but encountered difficulties in making contact with them;
4. the landlord agreed that any exploratory holes made to the resident’s property as part of previous inspections would be filled during remedial works.
The landlord issued a follow up response to the resident on 10 August 2021, apologising for the delay in responding and concluding that:
1. given the resident’s compensation review comments, it was willing to increase the compensation award to £6000;
2. its management team recognised the lack of oversight that led to the error in her case and, under the new contract that had been tendered, it would act differently in future;
3. it understood that its private housing services team was in contact with her about a temporary move;
4. with her approval, it would move her temporarily to an “extra care” flat and agreed for her to take her own carer and pay for a taxi for them and it would monitor progress of this.

Summary of Events after landlord complaint process

The landlord’s lift contractor advised the landlord that it had attended the property on 24 August 2021 and resolved the lift electric cable issue.
The resident approached this Service in September 2021, confirming she wished for an investigation to proceed on the grounds that she felt some aspects of her complaint were unresolved, including:
1. a lack of explanation as to why the permission error had occurred;
2. why the landlord had not paid a building control ‘late fee’ that would have allowed a building inspection and whether the ‘internal transfer system’ process had now been changed;
3. the failure of the landlord to act in 2019 meant that the inspection and works could not take place prior to the pandemic which led to her being exposed to Covid-19;
4. she had now lived with holes in her property (one in the ceiling and two in the flooring) for over a year;
5. there had been a leak through the ceiling of the ‘new space’ during recent rainfall;
6. she wanted the landlord’s procedures checked to ensure this could not happen again and a review of the compensation award.
The landlord and resident exchanged emails during September 2021, showing that the latter had been dissatisfied with the condition of the proposed temporary accommodation facility during a viewing. The landlord offered a further viewing following the replacement of some items and cleaning of the room.
The resident wrote to the landlord on 5 October 2021, expressing appreciation that it had taken her concerns seriously and provided additional guidance to staff. She told it on 17 November 2021 that she was willing to accept the £6000 compensation but she had alerted this Service as she believed that some of her concerns had not been addressed.
The landlord and resident exchanged further emails during November-December 2021. These indicate that:
1. the resident’s placement at the facility she viewed a couple of months earlier was now unavailable and another facility was proposed (where the resident would not be able to have her own carer or her cat);
2. the landlord said that it intended for works to be done in January 2022 but the resident expressed concerns in December 2021 about a new Covid-19 variant that made a move more dangerous to her.
The landlord advised this Service in April 2022 that it was still looking to arrange for the resident’s stay in a temporary care facility and remained in discussion with her on this.

Assessment and findings

The Ombudsman’s Dispute Resolution Principles are:

Be fair
Put things right
Learn from outcomes

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

It is not disputed that the landlord should have ensured that building control were alerted to the adaptation works conducted at the resident’s property to convert the garage into a bedroom. This should have happened prior to the works commencing in mid-2019 and it was inappropriate that it was not until December 2019 that the landlord realised an error had been made following the resident raising concerns about permissions.
Although the building control regularisation application was made in December 2019, the landlord failed to pro-actively follow up on this and there was a further unreasonable delay as the building control fee was not paid until July 2020 and the building control inspections were not conducted until August 2020. This effectively meant that there was a delay of more than a year in the landlord obtaining building control guidance on the adaptations it had arranged to the property. This was particularly unreasonable given the landlord was aware of the resident’s vulnerabilities and the time and trouble she went to in chasing an outcome.
The building control assessment in August 2020 established that the original adaptation works had been faulty or failed to meet current regulations in several ways. Although some of these had material impact on the resident’s living conditions (for instance, the level of insulation and size of a window), the works required to put right the original adaptations remained incomplete at the point the resident’s complaint exhausted the landlord’s complaints process in August 2021. Indeed, although some electrical issues were resolved that month, it remains unclear if the remedial works have yet been done.
In mitigation, there were complicating factors that meant some delay in completing the remedial works was inevitable. It was apparent that the works could not be carried out with the resident living at the property and temporary accommodation was necessary. Given the resident’s disabilities, the landlord was required to liaise with its social services colleagues to locate a suitable placement and also considered her needs related to her care and pet. The evidence seen by this Service indicates that the landlord took reasonable steps during October-December 2020 and April-August 2021 to offer reassurance on the nature of the placement and respond to the resident’s specific requests. This was complicated further by the Covid-19 pandemic which meant that there were occasions when the resident understandably felt it was unsafe to be away from home, particularly given her pre-existing health conditions.
Nevertheless, had the landlord and its contractor ensured the necessary building control submissions prior to the adaptations, the matter is likely to have been resolved prior to the pandemic. Overall, the original error in early 2019 with the lack of building control involvement, the delay in rectifying this between December 2019 and August 2020 and the delay in putting right the works from August 2020 will inevitably have had a substantial impact on the resident’s confidence in the safety and suitability of her property, affected the property condition itself (including exploratory inspection holes to the floor and ceiling remaining unfilled) and caused distress and inconvenience to her as she faced having to move out of the property temporarily at a time when she felt unsafe due to the pandemic.
However, through the complaints process, the landlord investigated the building control issue internally and with its contractor, acknowledged and apologised for its failings and awarded £6000 compensation. This was a significant level of compensation and within the range that the Ombudsman would recommend where there has been maladministration that has had a severe long-term impact on a resident. Given the potential seriousness of a lack of building regulations and the length of time involved in this case, the £6000 compensation was a proportionate award.
The landlord also took steps to check that the building control error had not been made for other adapted properties and explained that a prospective new arrangement with its contractor meant that its own staff would be responsible for design and management of adaptations in future. This demonstrated that the landlord reasonably considered the wider implications of the error and how it could avoid a situation like this happening again. Although the resident has suggested that the landlord should have offered more details on how the error was made, a relevant member of the contractor’s staff had left the organisation so it was difficult for the landlord to establish exactly what had happened; nevertheless, the evidence seen by this Service indicates that there was confusion over the responsibilities for permissions and that the landlord’s new contractual arrangements would therefore prevent this occurring in future.
Since the landlord’s final complaint response, the resident has suggested that some of the delay with the regularisation application was caused by a systemic problem with the landlord’s internal payment systems. It is unclear whether this has specifically been reviewed by the landlord and recommendations are therefore made below in this regard.
In summary, the combination of the landlord’s explanations for its service failure, apologies offered, service improvements and compensation award represented appropriate redress for the failings identified in the way it handled the resident’s concerns that adaptation works to convert her garage into a bedroom did not meet building control requirements. In accordance with the Ombudsman’s Dispute Resolution Principles, it was fair in its assessment of the service failure, took steps to put things right and demonstrated it had addressed potential learning points.

Determination

In accordance with paragraph 53b of the Housing Ombudsman Scheme, the landlord has offered reasonable redress to the service failures identified in its handling of the resident’s concerns that adaptation works to convert her garage into a bedroom did not meet building control requirements.

Reasons

The landlord did not ensure that its contractors notified building control of a planned garage conversion and, once this error was realised, there were unreasonable delays in it ensuring there was a building control inspection and in the completion of the required remedial works. However, the landlord has accepted and apologised for these service failures, identified how new working arrangements will prevent this happening again and its compensation offer of £6000 was fair given the circumstances of the case.

Recommendations

If it has not already done so, the landlord to pay the resident compensation of £6000 that it proposed in its August 2021 correspondence.
If it has not already done so, the landlord to write to the resident to:
1. update her as to what building control-related remedial works are still outstanding, the current plan with the proposed temporary accommodation stay and a likely timescale for this;
2. advise when, and how, it will address the resident’s roof leak report and fill the exploratory holes to the resident’s ceiling and floor;
3. confirm that its own private housing team surveyors are now submitting building control applications prior to commencing property adaptations.
The landlord to review its handling of this case to check whether any delay was caused by its ‘internal payment system’ and provide the outcome of this review to the resident, confirming what actions it has taken to avoid a recurrence in future.
The landlord to review its complaints policy and consider whether it needs to bring its stage one and stage two response timescales in line with the Ombudsman’s Complaint Handling Code; if it has not already done so, it should complete and publish the annual Code self-assessment.

The landlord should confirm its intentions in regard to these recommendations to this Service within four weeks of the date of this report.