Woking Borough Council (202007874)

REPORT

COMPLAINT 202007874

Woking Borough Council

13 June 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

The complaint is about the landlord’s:
1. Response to the resident’s request to adapt the property by adding a second rear door to the bedroom.
2. Complaints handling.

Background and summary of events

Background

The tenancy agreement is in the name of the resident and the resident’s partner, signed by the resident in November 2013. The tenancy is a secure tenancy and the landlord is the local authority.
The property is managed by a managing agent company on behalf of the landlord. The actions of the managing agent are considered as actions of the landlord, although at times they are referred to individually in this report.
The property is two-bedroom semi-detached bungalow. At the time of considering the complaint the landlord said the resident’s known vulnerabilities were a diagnosis of adult ADHD autistic spectrum disorder and low level mental health.

Aids and adaptation policy

The aids and adaptation policy states that a resident seeking adaptations at the property will need to have their needs assessed. The resident can arrange for an occupational therapist (“OT”) assessment by speaking to their GP. An OT visit aims to identify the aids, adaptations and equipment needed to support the tenant living independently at home. The policy goes on to say “the OT will produce a report based on their needs giving recommendations for adaptations to be carried out or aids to be provided. They will then forward this report to the Asset Management Team for consideration”. It then states the process for major adaptations (a surveyor will contact the resident to inspect the property to assess the feasibility of the proposals and draft a schedule of works which will be passed to the OT for approval) and the timescale for works (batched together with other similar work and can take up to nine months).
The policy is silent on the landlord’s obligations in respect of OT or other third party advice and recommendations.

Third party advice

An OT report was produced on 1 October 2019.
1. The report set out the reason for the major adaptation request, the resident’s mental health condition and the functional difficulties he had:
  1. Referral received from (the resident’s) GP to pursue a request to get an OT Report, with reference to the position of the back door and how it opens up in relation to his neighbours
  2. neighbours are verbally aggressive and there is some consideration to changing the location of the back door, within the same premises, if it can be supported by an OT and his GP
  3. if the door is not repositioned and garden enclosed (the resident’s) mental health and condition will deteriorate
  4. if another door is placed within the property to access the garden or current door repositioned and garden enclosed…the resident’s mental health would improve and enable him to access the garden without the fear of abuse.
2. Under the “possible solutions” section of the form the wording states that this should include the advantages and disadvantages of all options considered, any equipment that has been tried, whether the option of moving the property has been considered, the person’s (OT’s) view of the recommendations and preferred options. It also states that best value design solutions within the footprint of the existing structure will always be considered if appropriate and technically feasible. The information entered on the form states the possible solutions are “repositioning the kitchen (only rear door) from the current position to either elsewhere is the kitchen (this is the couple’s preference) or to have a door positioned in the second bedroom. In addition to enclosing garden by placing a gate in between the neighbour’s gate and (the resident’s) property”.
3. Under the “specifications” section of the form the wording states “if works cannot be completed to the enclosed specifications, please consult with the OT and grants officer before proceeding”. The specifications written are then listed as “other” and “to be decided by (the landlord) and (the resident)”. It goes on to set out the proposal to reposition the kitchen door to elsewhere or to have a door positioned in the second bedroom and to enclose the garden by putting in a gate between the neighbour’s gate and resident’s property.

Internal complaint process and other complaints

In September 2019 the resident complained about the landlord’s response to his request that the rear door of his property be relocated.
The landlord responded at stage one on 25 September 2019 and outlined a number of options for the resident to consider. As the resident was not satisfied with the landlord’s response, the complaint was escalated and a stage two response provided on 8 October 2019.
On 17 November 2019 the resident requested that his complaint be escalated to the landlord’s stage three ‘review’ stage but despite the resident chasing a response on 7 January 2020, there is no evidence that the complaint was escalated or a review stage response provided.
On 24 July 2020 the landlord responded to a complaint raised by the resident. This was about ASB, hate crime and reported discrimination. The landlord said that the original complaint the resident had raised had changed, it had been about a request for a different case worker to work with the resident and the refusal of the landlord to remove a rear door following an OT report.
The landlord’s response of July 2020 said that this aspect of the complaint (the door) had not been considered as per its policy. The evidence seen shows the landlord’s referral to the managing agent to consider the complaint about the response to the request to relocate the rear door. It said “please can you log a formal complaint on behalf of (both of the residents) namely that they submitted an OT report in support of their application to relocate the door at their home”.
The landlord issued a new stage one response in regard to the door issue on 27 July 2020 and a stage two response on 24 September 2020. It did not respond to the Ombudsman’s query as to whether it had issued a further response. The Ombudsman has considered the landlord’s complaint response as 24 September 2020 as its final response.

Summary of events

The resident’s concerns were that he was experiencing difficulties due to the interaction from the neighbour, and his mood and health was being affected. The resident explained that it would help if there was some distance from the neighbour. The resident’s complaint correspondence set out their view that the addition of a second rear door would allow them to have more private access to the garden and help their situation. The resident asked that the landlord consider the relocation of a door in the property light of the OT report and supporting documents. The resident subsequently amended their request; they asked for an addition of a second rear door.
On 27 July 2020 the managing agent responded at stage one to the complaint.
1. It said there was an existing and fully operational rear doorway that is fit for purpose of accessing and egressing the resident’s home and garden, installed in 2017.
2. To form an alternative rear doorway would be expensive and cause disruption to the property.
3. It held that “considering that there is suitable access to your garden (the existing kitchen doorway is fit for purpose for residents without mobility impairments and who do not require level access such as the need for wheelchair accessibility) these works do not meet any value for money or disability access criteria”.
On 24 September 2020 the landlord responded at stage two to the complaint:
1. It acknowledged the resident’s letter sent on his behalf by an advocate on 14 September 2020.
2. It said owing to the pandemic restrictions on work practices and in line with the managing agent’s complaint process, the managing agent undertook the review rather than a review panel.
3. It took into account the documents provided, including the medical records, OT letter, records of neighbour disputes on file.
4. It acknowledged the complaint to be about the decision on the request to the rear door being moved to another location, elsewhere in the kitchen or the second bedroom.
5. It held that the current rear door in the kitchen was fitted in 2017, was fully functional and enabled unfettered and full access and egress from the home and garden.
6. It was “unreasonable” and “impracticable” to form and install an alternative rear doorway.
7. It was disproportionate to do this due to the cost and disruption to the property, and would not resolve the issue for which the OT was making a case for (ie it would not stop verbal abuse/unwanted contact/ASB from neighbour).
8. There was suitable access to the garden and the existing kitchen doorway was “fit for purpose for residents without mobility impairments who do not require level access, such as the need for wheelchair accessibility.”
9. The current access through the shared passage way “must be maintained to allow alternative emergency escape, to assist with future maintenance to the rear of the properties and to afford access to the rear garden without having to go through the inside of the property for uses such as storing refuse bins, transporting garden materials…”
10. It highlighted that there were more appropriate, reasonable, cost effective and proportional measures to reduce the potential for disputes between the resident and neighbour and to help the resident’s well being, including mediation/coaching or enforcement measures if there was substantiated evidence.
11. It said there were more practical and proportionate measures that were better value for money and had previously been proposed, such as installing a gate to match the height of the existing fence to provide additional security to the back garden.
12. It set out the option for the resident to progress the new external doorway at the resident’s expense and responsibility, setting out how written permission can be sought.
13. It upheld the stage one complaint response: no further action would be taken regarding the external doorway but it was willing to fit a gate the same height as the fence if this was requested by the resident.
There were further exchanges of information between the resident and landlord. The new reports of dissatisfaction have not been considered under this investigation.

Assessment and findings

Adaptation request

The resident has expressed the distress he has experienced and his personal health conditions to the landlord as per the information shared with the landlord from the OT report and his medical records referred to in the complaint investigation. The outstanding dispute is whether the landlord acted fairly and reasonably by then declining to adapt the property as requested by the resident and highlighted by the OT report.
The landlord offered an explanation of its decision, and it also explained why it considered less intrusive measures to deal with the problem which the resident had, which was not a mobility issue but an ASB issue (as per the landlord’s communication). It is reasonable for the landlord to decide to explore and exhaust alternative options to address the resident’s ASB concerns over the requested major adaptation works. The evidence seen in respect of the broader context of this complaint suggests that the landlord engaged with steps to address the ASB although the response to ASB itself has not been considered in this investigation.
The landlord is not bound by the OT report in this case as the wording of the specification states that the solution (repositioning the door) is “to be decided by (the landlord) and (the resident)”. The information recorded under the possible solutions does not include the person’s view of the recommendations and preferred options as requested by the form, which also states that “best value design solutions will be considered if appropriate and technically feasible”. The wording of the OT report is therefore ambivalent and leaves the matter to be decided by the landlord.
Additionally, the landlord’s adaptations policy does not state that the landlord is under an obligation to carry out proposed works but instead must consider it. The evidence shows that the landlord had discretion over the decision to adapt the property as per the resident’s request. It was reasonable for the landlord to consider the request in light of the broader reason (ASB) and offer the resident its reasoning as to why it could not adapt the property. Although its final decision is not in line with the outcome which the resident wants, the landlord has not acted inappropriately and therefore there has not been maladministration.

Complaints handling

It is clear that the resident’s earlier complaint about the door issue from September 2019 did not complete the landlord’s internal complaints procedure despite several requests for the complaint to be escalated from September 2019 to January 2020.
Under the landlord’s complaints policy a review of a decision should be provided within 20 working days. The resident asked for a review on 27 November 2019 and did not receive a response until the issue was re–raised in July 2020. This represents a seven-month delay in the landlord providing a review response to the complaint. This delay was not appropriate or in line with the landlord’s policies and caused the resident evident distress and inconvenience.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord’s response to the resident’s request to adapt the property by adding a second rear door to the bedroom.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaints handling.

Reasons

The landlord had discretion over whether to carry out the major adaptation works. It did not fail to meet its obligations and the evidence shows it explained the reasons for its decision to the resident.
The landlord delayed providing a response to the resident’s complaint escalation request by seven months.

Order

The landlord to pay the resident compensation of £150 in respect of any distress and inconvenience he experienced as a result of its highlighted complaint handling delays and failures.
The landlord is to make payment to the resident and confirm compliance to this Service within four weeks of the date of this report.