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Waverley Borough Council (202213384)

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REPORT

COMPLAINT 202213384

Waverley Borough Council

28 March 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

  1. The resident’s complaint is about the landlord’s handling of disability adaptations to the resident’s property.

Background and summary of events

  1. The house is a semi detached property built in 1955. The resident entered into a secure tenancy for the property on 24 September 2021. The resident’s son has cerebral palsy.
  2. An Occupational Therapy (“OT”) referral was made to the landlord for major adaptations to the property on 23 June 2017 to accommodate the resident’s son. The recommendation was put on hold due to the resident making a Right to Buy Application.
  3. The resident withdrew the Right to Buy Application on 15 February 2019. Following this another OT assessment was carried out on 25 November 2019. The landlord confirmed to the resident on 2 January 2020 that works would be put on hold until the resident determined if he would obtain permission to extend the property.
  4. The landlord served a Notice of Seeking Possession on the resident for arrears of £613.22. The resident advised that he was withholding this sum due to issues with his neighbour.
  5. On 23 April 2020 it was confirmed that the resident was not extending the property and would like to proceed with the adaptations to install a new ramp and electronic front door. On 24 April 2020 the landlord advised the resident that it was not currently undertaking adaptation works due to the COVID pandemic and it was not sure when this would change. It advised the resident that it was not possible to use the contractor suggested by the resident unless it was someone who had previously worked for the landlord.
  6. The resident contacted his ward councillor on 13 June 2020 to express his dissatisfaction about the lack of progress in the adaptations work. This was referred on to the landlord.
  7. On 16 June 2020 the landlord responded to the submission to the councillor advising that there had been a delay in the shower toilet as it was coming from China and there were COVID delays. It stated that the other works were on hold because the resident had plans to build an extension.
  8. The resident communicated directly with the Chief Executive (CEO) of the landlord on 3 July 2020 complaining that there had been poor communication with him. The resident advised the landlord that he was no longer paying rent. Following further communications on 17 August 2020 the CEO advised the resident that he had asked a landlord representative to write to him setting out how the complaint could be progressed.
  9. On 24 August 2020 the landlord wrote to the resident setting out its understanding of his complaint and advising him that the matter would be investigated and a response provided no later than 11 September 2020.
  10. In an internal landlord email on 2 September 2020 it was confirmed that the shower toilet had been installed.
  11. The landlord provided a stage two complaint response to the resident on 7 September 2020. A copy of this does not appear to have been provided to this service. The resident responded to this reiterating his concerns about the delays. The landlord replied that it had nothing further to add and reminded the resident that if he continued to withhold his rent, it would have no option but to take recovery action.
  12. The landlord attended the property on 15 September 2020. It informed the resident that specialist contractors would be needed and it would be in contact as soon as the tendering process had been completed.
  13. On 1 October 2020 the resident emailed the landlord setting out his complaint about the landlord’s handling of the matter. The landlord responded on 22 October 2020 and advised the resident that he needed to clear his rent arrears.
  14. There was a meeting with the landlord and contractors at the property in February 2021 to discuss the installation of the ramp and the new front door. On 29 March 2021 a quote of £16,150 was provided to the landlord by specialist contractors contacted by the landlord. This was in excess of the maximum amount payable set out in the landlord’s Aids and Adaptations Policy for “medium” adaptations.
  15. A surveyor visited the site on 27 May 2021 to look at the feasibility of the landlord’s contractors undertaking the works.
  16. On 28 May 2021 the landlord served a Notice of Possession on the resident for arrears of £4,119.26. The resident confirmed that he was withholding this rent due to the landlord not dealing properly with his ASB complaint against his neighbours.
  17. On 17 July 2021 the landlord placed an order for the adaptations to be done in accordance with the National Housing Schedule of Rates.
  18. This was followed on 23 August 2021 by the resident emailing the landlord to advise it that he now intended to install the front door and ramp himself. The resident stated that he would initially cover the costs and then stop paying rent and council tax until he had recouped the outlay. He estimated this to be between £10,000 to £12,000. There were internal discussions by the landlord about responding to the resident, however it appears that it did not. The resident then sent another email on 7 September 2021 noting the landlord had not responded to his previous communications. The resident confirmed that he would be undertaking the works and would try to not exceed the council’s budget. He confirmed that he expected to be reimbursed and would withhold his rent until he had recouped his outlay.
  19. On 14 October 2021 the landlord provisionally booked works to start on 29 October 2021, noting that contractors had not been available previously.
  20. On 18 October 2021 the landlord prepared an email to send to the resident but it was not sent due to an internal misunderstanding.
  21. The landlord did send a letter to the resident on 17 November 2021. It confirmed its understanding that the resident proposed to carry out the works himself and wanted the landlord’s works to be cancelled. It advised the resident that he needed written consent for the works, including retrospective consent for the front door. The landlord asked the resident to tell it the specifications and details of the ramp and door. It stated that any works he undertook would be at his own cost and the landlord would not be liable to contribute or reimburse him.
  22. On 9 December 2021 the resident responded to the landlord rejecting its position. The landlord acknowledges that it did not send a response to this and it did not log a complaint. There was a telephone call between the resident and the landlord, and the landlord decided to review the resident’s concerns again at stage two of its complaints procedure.
  23. The landlord sent a stage 2 complaint response to the resident on 9 February 2022. It acknowledged that there had been significant delays in progressing the works and apologised. As a gesture of goodwill it offered to reimburse the resident the maximum amount it would have paid for the work, based on the National Housing Schedule of Rates – being £11,200. This was conditional on the resident submitting a retrospective planning application for the adaptations and providing a detailed invoice. The landlord followed this up on 24 February 2022 asking for the resident’s response. The resident responded on 25 February 2022 stating that he felt that the offer was a “trap”.
  24. From March to August 2022 there were a number of communications between the parties regarding the resident’s involvement of his ward councillor in the dispute. Following meetings, on 15 August 2022 the landlord requested that the resident provide invoices for the work he carried out no later than 3 September 2022.
  25. In September 2022 there were a number of communications between the parties about the invoices. On 12 September 2022 the resident advised the landlord that he declined to provide the invoices. The landlord emailed the resident on 14 September 2022 expressing its disappointment that he had cancelled a surveyors visit and reiterating its request for a detailed invoice. It also confirmed that the resident’s arrears stood at £11,675.90 and it would be serving a Notice Seeking Possession.
  26. The Occupational Therapist advised the landlord on 22 September 2022 that the new ramp and front door met the resident’s son’s requirements in accordance with the original referral on 2019.
  27. A surveyor inspected the works undertaken by the resident on 30 September 2022.
  28. On 14 October 2022 the landlord wrote to the resident in response to the invoices he sent it for works he carried out to install the new disabled ramp and front door at the property. The landlord acknowledged that the works mainly complied with the OT recommendations and were of a high standard. However, the landlord stated that it was concerned about the lack of detailed information about the works and discrepancies between invoices. It also set out its views that the additional costs for extending the porch were not included in the OT recommendation and therefore the landlord should not cover these. The landlord therefore declined to settle the resident’s invoices for £15,000. It invited the resident to submit more detailed information. It stated that if the resident was not able to do this, then it was prepared to pay £11,200 as this was the amount which it believed that it would have paid to contractors for the new front door and permanent ramp. It noted that the resident’s rent arrears were £12,244.30 and said it would credit this amount to the rent account. It further stated that the landlord was unable to pay the resident additional compensation by making a credit of £2166.20 to his council tax account, as council tax was an entirely separate matter.
  29. The landlord service a Notice of Possession on the resident on 14 October 2022 for arrears of £12,102.20.
  30. The resident responded to the landlord on 7 November 2022. He set out his understanding that the landlord had talked to the door supplier regarding the cost of the door and that he was not requesting the full amount of the cost of the door. He confirmed his position that the £750 charge for the security lock was reasonable and he was not seeking full reimbursement. He explained that the extension was to allow a turning space for the wheelchair. He stated that he had advised the landlord of this on numerous occasions. He declined the landlord’s offer of £11,200 and stated that he sought £15,000 plus compensation for failure to deliver the works in the required time and the impact this had on his family.
  31. The landlord responded to this on 23 November 2022. It refuted the resident’s claim that it had spoken to the front door supplier. It confirmed its position that the cost the resident paid for the front door far exceeded what the council would have paid. It accepted that it had discussed the porch extension with the resident, however it was not specified in the OT report as necessary and another approach to ensuring there was an adequate turning circle would likely have been taken by the landlord’s contractors if they had done the work. It reiterated its view that the costs for the security system were excessive. It provided the resident with a quotation for the works received in October 2021 from a specialist contractor. It stated that, as this exceeded the maximum amount specified in the Council’s Aids and Adaptations Policy, it had concluded that it should look to the works being done by its general repairs team. It noted that its contractors were provisionally booked for October 2021, however by then the resident had commenced the works. It concluded by acknowledging that the adaptations had been done well. However, its position remained that the works could have been carried out at a reduced cost of approximately £11,200 and it would not increase its compensation amount beyond this.

Assessment and findings

  1. The Ombudsman starts by acknowledging that the adaptations that are the subject of this dispute are important to the dignity and quality of life of the resident’s son and family. The Ombudsman understands that, as such, this matter has been a particular source of concern and importance for the resident.
  2. The landlord has acknowledged that there were failings by it in its handling of this matter. The crux of the matter in dispute between the parties is the amount of compensation which the landlord should pay the resident.
  3. The Ombudsman finds that there has been a number of failings by the landlord. These failings primarily fall into two categories – unreasonable delays in progressing the works and poor communication with the resident.
  4. The evidence indicates that the recommendations for the works were first made in 2017 and the landlord did not book for the works to be done until October 2021 – a significant period of time. However, the Ombudsman does not find that this substantial delay was due solely to failings by the landlord. There were initial delays as the resident contemplated making a Right to Buy application and then because the resident was contemplating extending the property. The evidence indicates that that it was not until April 2020 that the resident confirmed that he would not be proceeding with an extension and the landlord should proceed with the adaptations. There was then a delay due to the initial stages of the COVID pandemic. Whilst unfortunate, the Ombudsman considers that this period of delay was outside of the landlord’s control given that this was at the very start of the pandemic, when it was unclear how long lockdown and other restrictions would be in place
  5. The Ombudsman would expect the landlord’s processes to have resumed to a relatively normal level after the initial months of the pandemic and it is not clear why the landlord did not identify that specialist contractors were needed until September 2020. It then took until 26 March 2021 for quotes to be obtained. This was an unreasonable amount of time. When these expert quotes were obtained it was then found that they were in excess of the maximum amount that the landlord would pay for adaptations of this type according to its policy. It was the reasonable for the landlord to explore other options as the quotes exceeded the funds allowed for in its policy. However, it then took a further two months for the landlord to undertake a site visit to assess having the work done by its own contractors, and then another two months until it “placed an order” for the adaptations. It is not entirely clear what this step involved, as it was not until 14 October 2021 that the landlord made a “provisional” booking for the works to start on 29 October 2021. The landlord has referred to delays being because its contractor had not been previously available. By this stage the resident had communicated to the landlord that he intended to undertake the works himself.
  6. The Ombudsman considers the time taken by the landlord to make the “provisional booking” was clearly unreasonable even taking into account the impact of the pandemic, particularly given the importance of the work to the resident and his family’s quality of life. Whilst not “urgent” works, clearly the works were very important and should not have been unreasonably delayed.
  7. There were also a number of instances of poor, or no, communication by the landlord. In its letter of June 2020 responding to the resident’s councillor’s query about the work, the landlord stated that the works were on hold because the resident had plans to extend the property. However, the landlord had already confirmed that this was not the case and the adaptations should proceed. The landlord did not respond at all to the resident’s correspondence of 23 August 2021, when the resident advised the landlord that he would be undertaking the works himself. It prepared an email on 18 October 2021 to the resident, shortly before the works it had provisionally booked to begin, but for reasons that are unclear did not send it to the resident. It failed to respond to the resident’s communication of 9 December 2021.
  8. The Ombudsman therefore finds that there has been severe maladministration by the landlord in its handling of disability adaptations to the resident’s property.
  9. The landlord has acknowledged failings and apologised to the resident. It has also stated that “lessons have been learned” and it “accepts the need for increased management oversight of the disabled adaptations service so that … the tenant is kept updated”. It has also stated that it accepts that it needs to work more closely with the council and has set up regular meetings to discuss progress of disabled adaptations. The landlord has offered to pay the resident £11,200, which is the amount it consider it would have paid for the adaptations to be done. The Ombudsman has considered whether the redress offered by the landlord is reasonable.
  10. The Ombudsman has started from the position that the ultimate aim of remedies ordered by the Ombudsman is to be fair and proportionate. In this case, the Ombudsman considers that three types of remedy are appropriate.
  11. Firstly, the Ombudsman considers it is reasonable for the landlord to reimburse the resident for the works that he has done, which meant that it does not need to do any of the adaptations work. It is important to note that, whilst the Ombudsman considers that the landlord should reimburse an amount to the resident, this does not mean that we have concluded that the resident’s undertaking of the work was a reasonable response to the landlord’s failings. Whilst the landlord was unreasonably slow to progress the works and failed to respond to the resident when he said he was going to do them, the resident was aware that permission was needed to undertake the works. Further, by the time the resident undertook the works, it was clear that the landlord was going to undertake the works. However, the landlord has not disputed that it had an obligation to undertake the works. The parties agree that the recommendations by the OT have been implemented to the necessary standard. Therefore, by undertaking the works the resident has relieved the landlord’s obligations to undertake the works and it is reasonable for the landlord to compensate the resident for this. The dispute between the parties is how much the landlord should reimburse the resident.
  12. The resident’s submission is that the landlord should pay him £15,000 for the works done. The landlord’s position is that it could have carried out the works for £11,200 and this is the maximum it will pay. There has also been some dispute between the parties about some elements of the work, such as the door, and whether the resident’s work was enhanced beyond the standard which the landlord would have reasonably worked to. The Ombudsman notes that they have not been provided with extensive evidenceto demonstrate the costs incurred by the resident.The resident has provided an invoice but declined to provide further info such as about the use of sub-contractors which the landlord reasonably requested.
  13. The Ombudsman considers that the landlord’s offer of £11,200 is reasonable. The Ombudsman is satisfied this is based on a reasonable assessment of how much it would have paid for the work to be done. The Ombudsman’s notes that the landlord would not be liable for any works that were above the standard required to meet the OH recommendations. The Ombudsman therefore requires that the landlord pay the resident £11,200 as reimbursement for the adaptation works he undertook. The standard position that this service takes is that redress payments may not be paid against rental arrears. However, the Ombudsman notes that in this case the resident has consistently advised that he is withholding rent because of this dispute. Given that there is a clear link between the rent arrears and this dispute, the Ombudsman therefore orders that, given the particular circumstances of this case, the landlord is entitled to apply this amount against the arrears that have accumulated on the resident’s rental account.
  14. The Ombudsman also considers that the landlord should pay the resident, as a separate category, compensation for the distress and inconvenience he has suffered due to the landlord’s failings. In considering an appropriate amount the Ombudsman has taken into account that there were a number of failings over an extended period of time. The Ombudsman has also taken into account the impact on the resident’s son and his family – the landlord was clearly aware of the family’s circumstances. The Housing Ombudsman Guidance on Remedies sets out that awards of £750 or above are appropriate where there has been maladministration that has had a severe long-term impact. The Ombudsman considers that in this case it is appropriate to required the landlord to pay the £1,500 compensation for distress and inconvenience within four weeks of the date of this determination. As this is compensation to recognise distress and inconvenience this should be paid directly to the resident and should not be used to off-set rent arrears (unless this is specifically requested by the resident).
  15. The Ombudsman acknowledges that the landlord has stated that “lessons has been learned” and it has undertaken some changes as a response to this. However, the specific details of these changes has not been provided. The Ombudsman requires that the landlord undertake a thorough review of its approach to disabled adaptations in light of the failings identified in this determination and provide a report with specific actions to the Ombudsman within eight weeks of the date of this determination.

Determination (decision)

  1. In accordance with section 52 of the Housing Ombudsman Scheme, there has been severe maladministration by the landlord in its handling of disability adaptations to the resident’s property.

Reasons

  1. The Ombudsman considers the time taken by the landlord to make a booking for the works was clearly unreasonable, even taking into account the impact of the pandemic. This is particularly so given the importance of the work to the resident and his family’s quality of life. Whilst not “urgent” works, clearly the works were very important and should not have been delayed to such an extent.

Orders

  1. The Ombudsman requires that the landlord pay the resident £11,200 as reimbursement for the adaptation works he undertook. The landlord is entitled to apply this against the arrears that have accumulated on the resident’s rental account which are directly due to this dispute.
  2. The Ombudsman requires that the landlord pay the £1,500 compensation for distress and inconvenience within four weeks of the date of this determination. This should be paid directly to the resident and should not be used to off-set rent arrears (unless this is specifically requested by the resident).
  3. The Ombudsman requires that the landlord undertake a thorough review of its approach to disabled adaptations in light of the failings identified in this determination and provide a report with specific actions to the Ombudsman within eight weeks of the date of this determination.