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Wakefield And District Housing Limited (202127853)

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REPORT

COMPLAINT 202127853

Wakefield And District Housing Limited

23 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 handling of the resident’s :
    1. concerns about a tree relating to blocking light and leaf fall;
    2. request to have a driveway installed at the property, and; 
    3. associated complaint.

Background

  1. The resident is an assured tenant of the landlord. In February 2022 the resident complained to the landlord about the safety of the garden pathway, which she said was affected by a tree blocking light and dropping leaves. She explained that visitors had fallen over on the path, as had she. She also stated that delivery drivers would not deliver to the property as they refused to use the pathway steps. To resolve this, the resident requested that the landlord convert the pathway into a drive, levelling the access and removing the steps. The resident stated that she was registered disabled and had previously applied for an off street parking grant for this work but this was declined. The landlord later noted that it had not dealt with such an application so this must have been via the Local Authority (LA).
  2. After speaking with the resident to clarify the complaint and visiting the property to inspect (having first visited the wrong property), the landlord concluded in its stage one response dated 2 March 2022 that the pathway was in good repair and not dangerous, the tree was healthy and did not meet any criteria for works, and that the resident’s request for a driveway was disproportionate and not essentially required. It said that it did not carry out work to trees on the basis that they were blocking light or due to leaf fall. It offered the resident £50 compensation in recognition of initial visit to inspect having been carried out at the wrong property.
  3. It said that as a gesture of goodwill it would install a small piece of fencing to provide a ‘means of stability’ for anyone walking up the path, and for each of the steps to be painted to provide a visual indicator. It had also asked its adaptations team to contact the resident to discuss the potential of a handrail being fitted to the path.
  4. The resident escalated her complaint to stage two, stating that despite the landlord’s policy of not removing healthy trees, it was a health and safety risk, rather than simply a complaint about blocking light. The resident also felt that the landlord’s refusal to convert the path to a driveway amounted to disability discrimination, as this would assist her in accessing her home from her vehicle.
  5. The landlord declined to escalate the complaint as it considered that it was the same complaint as one made in 2014 about the tree blocking light, and considered by the Ombudsman at that time. It apologised that this was not recognised sooner in the complaints process. It stated that the resident might want to consider applying for permission to install a floodlight to the front of her property to illuminate the pathway, which would be would be ‘considered favourably’. It noted that the tree had recently been inspected and no work was currently required.
  6. The resident referred the matter to this Service on 21 March 2022. She remains unhappy with the outcome of the complaint as she believes the landlord has discriminated against her due to her disability. As a resolution, the resident would like the landlord to install a driveway at her property.
  7. On 21 April 2022, in a response to an MP enquiry about the same matter, the landlord stated in relation to converting the garden and path into a driveway due to physical needs, the resident would need to contact the LA, who would be responsible for assessing for this type of major adaptation.

Assessment and findings

Scope of investigation

  1. The resident has stated that the landlord had acted in a discriminatory way towards her based on her disability. It is important to note that this Service cannot determine whether discrimination has taken place in the legal sense, as this would be better suited to a court to decide. However, we can look at whether the landlord has treated the resident fairly.

 

Policy and Procedure

  1. The landlord’s Trees Management Policy sets out that it would not prune or fell a tree to improve natural light or to prevent or alleviate leaf fall.
  2. The landlord’s Procedure for Adaptations states that in the first instance, its Occupational Therapist (OT) would work with a resident to establish the most effective way to reduce the effects of their health condition on their ability to manage at home, such as alternative techniques and coping strategies, and minor adaptations. If significant difficulties persist major adaptations would be considered.
  3. Any requests for major adaptations would be considered by the Adaptations and Wellbeing Manager or Clinical Lead OT to decide if the request was ‘reasonable and practicable’, as defined in the Housing Grants, Construction and Regeneration Act 1996. Any customer who is dissatisfied with a decision made relating to an adaptation request has the right to appeal the decision.
  4. The Procedure also states that the LA’s Adaptations Service would carry out all assessments for tenants who required major adaptations (over £1000).
  5. The landlord’s complaint policy sets out a two stage procedure. If a resident was dissatisfied with the stage one response they could request to escalate to stage two. The landlord may chose not to escalate a complaint if, for example, the complaint was upheld at stage one and an appropriate and proportionate resolution was offered, or if the resolution requested cannot be provided as it is disproportionate.
  6. The Ombudsman’s remedies guidance suggests awards of £100 and over where the landlord has failed to acknowledge its failings and/or has made no attempt to put things right, but there has been no permanent impact on the resident.

Concerns about a tree relating to blocking light and leaf fall

  1. When the resident reported issues with the tree blocking light to the pathway and leaf fall causing a hazard, the landlord was obliged to investigate. The records show that it did so, attending to inspect. Although this was initially at the wrong property, which was clearly frustrating for the resident, it remedied this error swiftly, and offered £50 in recognition. In line with its Tree Management Policy, it concluded that no works to the tree were required.
  2. The evidence available demonstrates that the landlord handled the resident’s concerns about the tree fairly and in line with policy. There was no failing here.

 

Request to have a driveway installed at the property

  1. The resident raised issues about accessing the property in light of her disability. In accordance with the Equality Act 2010, a landlord has a duty to make reasonable adjustments to premises to meet the needs of residents with disabilities. In this case, the resident requested her front-garden be converted into a driveway as the steps were proving difficult due to her disability, and so the landlord was obliged to consider this request.
  2. In its response to the complaint, the landlord inspected the pathway and found it to be generally sound, and advised that it would not convert to a driveway. However, it offered to install fencing to provide a ‘means of stability’, and for each of the steps to be painted to provide a visual indicator. It had also asked its adaptations team to contact the resident to discuss the potential of a handrail being fitted to the path.
  3. These were reasonable actions for it to take to try and resolve the matter (which it appears the resident declined), and exploring alternative techniques and minor adaptations in the first instance was in line with the Adaptations Procedure. However, this procedure also states that any assessment is to be made by an OT: There is no indication that an OT was involved, and therefore no evidence that a full assessment of the resident’s needs, and request for major adaptations, was undertaken. The landlord did not follow its procedure here.
  4. The procedure also states that the LA’s Adaptations Service would carry out all assessments for major adaptations. It is not clear how this interlinked with the landlord’s own assessment of requests for major adaptations as set out in the Procedure, but in any case, there was no OT or Adaptation Team involvement in the decision to decline the request for a driveway. The landlord did later (in its 21 April 2022 letter to the MP) state that the resident should contact the LA who would be responsible for assessing for this type of major adaptation. If this was the case then it would have been appropriate to have advised of this sooner.
  5. The Ombudsman notes that the resident had said that she had previously been declined such a request by the LA, but it is not clear when this was. The records available suggest that this may have been in 2020. However, the resident had stated that her mobility had decreased more recently and as such, an updated assessment would have been appropriate.
  6. Overall, while the landlord did take steps to investigate the resident’s concerns and offered to take action to try and address these, it did not follow the correct procedure for assessing the request for adaptations. While it is not possible for the Ombudsman to determine what the outcome of such an assessment would be, this was a lost opportunity for the resident’s needs to be appropriately evaluated by an OT. This also meant that the resident had no ‘right to appeal’ as set out in the Adaptations Procedure. There was maladministration on the part of the landlord here, and orders are made below to remedy this.

Complaint handling

  1. In response to the resident’s request to escalate her complaint about the tree and pathway, the landlord stated that due to the issue raised being of a ‘similar’ nature to a previous complaint in 2014, it would not do so. The landlord’s complaint policy does not specifically stipulate that it would not look again at issues that had previously completed the complaint process, but in general the Ombudsman would consider it reasonable for a landlord to decline to investigate the same complaint again.
  2. However in this case, the complaint referred to dated back eight years. Given the length of time that had passed and the scope for the situation to have altered in the meantime, it would have been appropriate for the landlord to have considered the complaint via its full complaint process.
  3. Furthermore, a stage one response was provided which would have set expectations to the resident that she would have her complaint fully explored via the complaints procedure. It was not reasonable to identify at stage two of the process that the complaint had previously been decided upon.
  4. The resident had also escalated the complaint as she felt that she was being discriminated against, and had challenged the landlord’s stage one response as she felt that it needed to treat the tree as a potential safety hazard. Because the landlord declined to provide a stage two response, these issues were not addressed.
  5. As such, the resident did not receive a full response to her concerns, which would have caused frustration.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
    1. no maladministration in the landlord’s handling of the concerns about a tree relating to blocking light and leaf fall;
    2. maladministration in the handling of the request to have a driveway installed at the property, and;
    3. service failure by the landlord in way the landlord handled the associated complaint.

 

Orders

  1. Within one month of the date of this report, the landlord must:
    1. Pay the resident a total of £300, comprised of £200 in recognition of failures in the handling of the request to have a driveway installed at the property, and £100 compensation in recognition of the failings in the complaint handling. Any amount that has already been paid the via this complaint (for example the £50 previously offered) can be deducted from this total.
    2. Assess the resident’s concerns about accessing her home via the pathway, and the request to have a driveway installed at the property, in line with the Procedure for Adaptations.

 Recommendations

  1. The landlord may want to reconsider its position on the tree in light of the resident’s comment that it posed a health and safety hazard, given this was not addressed in the complaint response.