Brentwood Borough Council (202013898)

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REPORT

COMPLAINT 202013898

Brentwood Borough Council

03 November 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

  1. The complaint is about the landlord’s response to the resident’s request for:
    1. Adaptations to the property.
    2. Removal of garden debris.

Background

  1. The resident is the secure tenant of the landlord (a Local Authority) at the property, a semi-detached house. The house was previously adapted to provide a ground floor bathroom and front/rear access to the house. The resident’s son has complex needs and it is not disputed that his needs require a suitably adapted property.
  2. This investigation focusses on two separate complaints that progressed through the landlord’s complaints process independently. The first complaint related to the landlord’s refusal to extend the property so as to allow for separate access to the downstairs bathroom, as recommended by the Occupational Therapist (OT) in September 2020.
  3. The landlord’s complaint responses on this issue confirmed that the extension would amount to a major adaptation, for which the funding required would exceed its budget for such works throughout the full financial year. It also confirmed that funding for such works could not be obtained through a Disabled Facilities Grant (DFG), which was limited in its area to non-Council owned properties. Instead, the landlord said that it would work with the resident to secure suitable alternative accommodation.
  4. The second complaint investigated here relates to garden maintenance. Following contact from this Service in June 2021 the landlord responded to the resident’s complaint later that same month, confirming its position that clearance of any garden debris would be the resident’s responsibility under the terms of the tenancy agreement.
  5. The landlord accepted a delayed escalation request on this complaint in January 2022, providing its final response on the issue later that month. This confirmed the position outlined in the earlier stage one response and also confirmed that it had not received any historic reports from the resident in relation to debris left in the garden, neither at the commencement of the tenancy in 2015, nor thereafter. The landlord also referred to photographic evidence following an independent survey in June 2020 and concluded that the contents of which did not demonstrate a ‘risk’ to the household.
  6. The resident confirmed to the Ombudsman that she wanted both complaints investigated. She also explicitly stated that she disputed the landlord’s position regarding DFG funding and that she desired the recommended OT adaptations to the property.

Assessment and findings

Adaptations

  1. The OT’s letter to the landlord dated 2 September 2020 recommended that the resident and her family required an alternative access to the bathroom, which was currently accessed via a small, confined kitchen area. This would improve the independent living ability of the resident’s son. The OT noted that as the property location is ideal, the resident did not wish to move. The OT provided further information in a letter dated 12 October 2020 noting that the resident had requested that the kitchen space be extended. According to the landlord’s Surveyor’s advice (during a visit with the OT Manager), a larger kitchen was the only way that a separate access to the bathroom could be created.
  2. The landlord reviewed the OT’s recommendation at the aids and adaptations board and declined the recommendation. The landlord advised the resident (on 5 October 2020) that due to the restricted layout of the property (following previous major adaptation works for downstairs toilet facilities), there was no feasible alternative access into the bathroom without major alterations.
  3. Since the budget for this requested work would be over £400 and therefore considered to be a major adaptation under the landlord’s aids and adaptations policy, it was in line with the landlord’s policy for the OT’s recommendation to be considered by the board. Under the terms of the policy, the landlord can decline the request where the resident’s property is not considered suitable for an adaptation (for reasons including layout) or where the adaptation requested is not feasible. Where large-scale adaptations involving an extension are recommended, the landlord will instead look to find a property that already has the adaptation required or if unable to find such a property, one that is suitable for minor conversion. Therefore, it was within the landlord’s policy for the landlord to decline to extend the property to create a separate access to the bathroom.
  4. The resident did not agree that the landlord could decline the request because of adaptations completed previously or the cost and noted that the kitchen facility was needed due to health and safety concerns. The resident raised stage one and two complaints asking why her son could not be awarded a DFG; noting that the landlord had refused to carry out the work due to lack of funding; and that the landlord had mistakenly advised that DFGs are only for private tenants. The resident stated that moving to another property was unlikely to be an option as the property was suitable in all ways apart from the kitchen. The resident considered that it was discriminatory to refuse a person help and support under the Equalities Act 2010. The resident stated that her kitchen was too small, with her son experiencing health and safety issues when using facilities within the kitchen.
  5. Internal emails indicate that the landlord had considered the request but that the only way to create an alternative entry to the bathroom was to extend the rear of the house which was not viable. The landlord went on to note that whilst an OT can make a recommendation, a surveyor must state whether what has been requested can be done. In this case, the landlord decided that the resident would need to move to alternate accommodation that suits the family’s requirements.
  6. The landlord’s complaint responses advised that the only way to create an alternative access to the ground floor bathroom extension as requested by the OT would be to add a major extension to the property. The landlord attached a copy of its aids and adaptations policy, noting that the policy states that the landlord will not agree to extensions but rather look for alternative accommodation.  The landlord explained how adaptations are funded for council tenants noting that this is via the Housing Revenue Account (HRA) rather than the DFG and there is a limit on the budget. The landlord advised that creating another doorway into the bathroom would involve major structural works to the existing building and foundations which was not feasibly viable.  The landlord was to contact the resident to discuss the option of moving to alternative accommodation that was more suitable for the family’s needs. The landlord would liaise with the OT on specific requirements for an alternative property.
  7. It is understandable that the resident wanted her current home to be extended to create an additional access to the bathroom which was necessary for her son. The landlord considered this request in line with its aids and adaptations policy but had to weigh this against whether creating an additional access was feasible. The landlord explained the rationale for rejecting the request and presented an alternative way to meet the family’s needs which was to find a more suitable property. The OT has already provided the resident with a list of requirements to ensure any future property is suitable for the property. Thus, the landlord has considered the request appropriately and in line with its aids and adaptations policy.
  8. It is noted that the landlord confirmed in its final response that ‘provision for adaptations are factored into the HRA settlement’ and that this meant that any DFG funding is limited to owner-occupiers, privately rented properties and housing association tenants. The Local Government and Social Care Ombudsman (LGSCO) would be the appropriate body to respond to unresolved disputes about how a Local Authority manages its statutory duties regarding DFG funding and it would therefore not be appropriate for this investigation to comment on this aspect of the landlord’s response. For the purposes of the complaint under investigation, it was satisfactory that the landlord clarified its position, including its reasons for stating that DFG funding did not offer a resolution in this case.
  9. The landlord confirmed that the works that would be required to adapt the property in the manner required would take up in excess of its annual budget for all such works across its property portfolio. As such, the Ombudsman considers it to have been a reasonable response to refuse the works on financial grounds and to look for an alternative option. In the circumstances, it is recommended that the landlord look to revisit this issue now, by discussing with the resident the possibility of securing alternative accommodation that would suit the household needs.

Garden

  1. Records show that on 30 May 2021 the resident informed the landlord of heavy stones in the garden which her son could fall over. The landlord had spoken with the resident on 9 June 2021 and explained that the landlord would not remove bricks from the garden. This was an appropriate response since the tenancy handbook explained that the tenant is responsible for keeping the garden clean and tidy.
  2. The resident’s complaint (as brought to the Ombudsman’s attention in June 2021) was about rubble in the garden over the last five years making it unsafe; the landlord’s refusal to remedy this; and the landlord’s advice that it is the resident’s responsibility to clear the garden. The Ombudsman contacted the landlord about this complaint on 9 June 2021.
  3. The landlord acknowledged the complaint the following day and responded to the complaint at stage one on 16 June 2021. The landlord noted that the resident had originally asked for the garden to be cleared on 28 April 2021 and the landlord responded the following day, stating that it was not within the landlord’s remit to do so – it also sent her a copy of the tenancy agreement and housing handbook. The landlord re-sent this response on 5 May 2021 as the resident advised that she had not received a reply. The landlord also noted contact on 30 May 2021 and 9 June 2021. The landlord did not uphold the complaint as it considered it had responded to queries in a timely way and as per the tenancy agreement.
  4. The tenancy handbook and tenancy agreement are clear that residents should dispose of garden waste and there is no indication that the landlord has any responsibility for clearing bricks or rubble from gardens. Therefore, the advice that the landlord provided in its stage one response and previous contacts with the resident were in line with the tenancy handbook and the tenancy agreement and were appropriate in the circumstances.
  5. The resident did not escalate this complaint to stage two at this time although the landlord agreed to do so following further contact from the resident in January 2022, a reasonable exercise of its discretion given the circumstances described by the resident. The resident explained that the rubble was in the garden when she moved into the property in 2015, she did not consider it was her responsibility to move the rubble and there were concrete pillars in the ground (potentially from an outbuilding) which were major obstacles for her son. The resident also stated that the surveyor recommended that the concrete should be removed.
  6. The landlord responded to the complaint at stage two on 27 January 2022 noting that it had investigated the resident’s original complaint in June 2021 and had concluded that the estates team had refused the resident’s request to remove rubble from the garden because it was the resident’s responsibility. The landlord noted that the resident moved into the property in 2015 and had submitted a series of formal complaints and despair cases since then but that none of these complaints had mentioned rubble in the garden.
  7. The landlord went on to note that photos from an independent surveyor in June 2020 showed a picture of a concrete slab but this was flat and not considered a risk. The landlord noted that when viewing the property in 2015, the resident accepted the property as seen and at no point in the documentation reviewed by the landlord nor in the repairs raised, did the resident mention the slab or rubble needing removing. The landlord concluded that there was sufficient investigation at stage one and that any rubble that the resident believe needs to be removed will be her responsibility. The landlord did not uphold the complaint.
  8. Taken altogether there is no information to indicate that the landlord is responsible for clearing rubble or bricks from a tenant’s garden. Therefore, it was an appropriate response on the part of the landlord to consistently advise the resident that it was her responsibility as the tenant to remove rubble from the garden if she wished to do so. The landlord had examined photographs of the garden and did not consider there to be a risk. Since the landlord was not obliged to remove rubble or bricks from the garden, there are no grounds on which the landlord should have paid the resident compensation regarding this matter.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s request for adaptations to the property.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s request to clear the garden.

Recommendation

  1. The landlord to make contact with the resident to discuss the option of securing suitable alternative accommodation.