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Abri Group Limited (202109697)

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REPORT

COMPLAINT 202109697

Abri Group Limited

16 February 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 complaint is about:
    1. The landlord’s decision to decline the resident’s request to level their garden to make it more accessible.
    2. The landlord’s complaint handling.

Background

  1. The resident is a tenant of the landlord. Both the resident and her son have chronic conditions that affect their mobility. The landlord is aware of their vulnerabilities.
  2. The resident resides in a property that has a garden on a steep slope. She has been in contact with the landlord from 2018, stating that both she and her son are struggling to access the garden due to mobility issues. To resolve the issue, the resident wanted the landlord to level out her garden. The landlord has stated that it is only responsible for repairs and maintenance to the garden, and not for landscaping. However, it offered to install handrails for the resident to aid her access through the garden.
  3. Throughout the subsequent years, the resident has continued to request that the landlord level out her garden, submitting various pieces of evidence to support her request. The landlord has remained consistent, stating that it is not responsible for such an adaption, signposting the resident to her local authority for advice and potential financial support. The resident contacted the landlord on 25 April 2021, to explain that her condition had worsened and that she would like help to resolve the garden access issue.  The landlord again stated that the works did not constitute an adaption or repair.
  4. The resident submitted a complaint on 1 June 2021, stating that she was dissatisfied with the landlord’s refusal to level her garden. She explained that she feared falling if she went into the garden, and that she could not use it in any capacity. The landlord responded on 9 June 2021, explaining that it still did not consider the works to be its obligation. It neglected to state that if she remained dissatisfied, she could escalate her complaint to stage two of its complaint’s procedure.
  5. The resident complained about the landlord’s decision on 25 November 2021. Instead of escalating her complaint, the landlord gave another stage one response, reiterating its position on 1 December 2021. It stated that its decision was in line with the Disabled Facilities Grant Legislation (DFG), but offered more adaptions such as a handrail to aid access to the garden. The resident asked for her complaint to be escalated on 9 May 2022. The landlord declined to escalate her complaint, stating too much time had elapsed since her stage one complaint.
  6. After intervention from this Service, the landlord gave its final response on 22 September 2022. It apologised for the mistakes it had made in its complaint handling. It explained that its position remained the same, and that in line with the DFG, it could assist with access to the garden, but could not complete landscaping works to it, as this was outside of its obligations. It stated that it had offered handrails to aid access through the garden, and that it was happy to help the resident find an alternative property if she felt this would be better suited to her needs.
  7. In her complaint to this Service, the resident has explained that she feels the landlord should have done more to help her enjoy all areas of her home. As an outcome she would like the landlord to level the garden.

Assessment

The landlord’s decision to decline the resident’s request to level their garden to make it more accessible for them. 

  1. The resident’s tenancy agreement states that the landlord must keep in repair the main structure and exterior of the property.
  2. The landlord has stated that it has used guidance from the DFG legislation to help guide its decision. The guidance is a collection of existing policy frameworks, legislative duties and powers, together with recommended best practice, to help landlords provide a best practice adaption service to disabled residents.
  3. The guidance states that the DFG must be used for the purposes of facilitating access to and from a garden by a disabled occupant or making access to a garden safe for a disabled occupant. The DFG legislation itself states under ‘facilitating access to the home and garden’ section B69, that access to the garden should allow the disabled person to access their home or garden for drying clothes, playing or supervising play and gardening.
  4. Under s20(2) of the Equality Act 2010, any service provider must make reasonable adjustments if requested to do so to enable disabled people to use their services. If requested to do so by (or on behalf of) a disabled person put at a substantial disadvantage, a landlord must make reasonable adjustments to a provision, make reasonable adjustments to a physical feature or provide an auxiliary aid, unless the request is unreasonable.
  5. What is ‘reasonable’ will depend on the particular circumstances relating to each individual request. It is not possible for service providers to justify not making adjustments that are reasonable when they relate to the enjoyment of the premises, or the use of a benefit or facility to which the tenant or occupier of the premises is entitled as a result of the letting. The Court of Appeal considered the meaning of ‘enjoyment of the premises’ for the purpose of the provision of an auxiliary aid for a disabled person and held that the phrase had a technical meaning, in that it referred to the use and benefit of the tenancy rather than deriving pleasure from it.
  6. It is clear that the landlord considered its position and attempted to abide by the above legislation. In support of the resident, it acted appropriately by offering, and providing handrails to allow her to access her home through the garden. It also signposted her to various third-party funding opportunities, and supported her applications. After the resident sent the landlord her OT assessment, it made numerous changes to her home to make it more accessible. It also responded to the guidance within the assessment, explaining to the resident that it would help and support her if she wished to move to a more appropriate property, that would be better suited to her mobility needs.
  7. However, the landlord acted unreasonably in its decision to not consider making some small adaptations to the garden area, so that the resident could use a portion of it. The landlord has interpreted the guidance as being that it is only required to provide access to the property, through the garden. This is too restrictive, as the guidance explains that the resident has the right to access all of the benefits of the property. This would include being able to use some of the garden space, as part of the home that she rents. While it may not be reasonable to level the whole garden, the landlord should have considered the resident’s request for access to outside space in a more holistic way. It should have considered if there was a way of making some part of it accessible for her to use. While providing some space for the resident to safely access may not be possible, the landlord needed to have considered it, as part of its obligation to make reasonable adjustments for its disabled residents. The fact that it did not is a failing in the circumstances.

The landlord’s complaint handling. 

  1. The landlord’s complaint policy states that it will respond to an initial complaint within ten working days. If the resident remains dissatisfied, the landlord will escalate their complaint, and respond within 20 working days. Additionally, in this Service’s Complaint Handling Code (the Code) it states that if the complaint is not resolved to the resident’s satisfaction it shall be progressed to the next stage in accordance with the landlord’s procedure and the timescales set out in this Code. The Code also states that at the completion of each stage of the complaints process the landlord should write to the resident advising them of details of how to escalate the matter if dissatisfied.
  2. The landlord initially responded on 9 June 2021, but its reply did not contain information on how the resident could escalate her complaint. The resident expressed her continued dissatisfied with its decision on 25 November 2021. As per its policy, the landlord should have escalated her complaint to stage two. Instead, the landlord opened a new stage one complaint and responded again on 1 December 2021. The resident asked to escalate on 9 May 2022 and the landlord refused, stating too much time had elapsed from her first complaint. This response was not reasonable, as it was not in-line with either its own policy, or the Code.
  3. In its final complaint response on 22 September 2022, the landlord acknowledged that there had been mistakes in its complaint handling. It has detailed to this Service and the resident the changes it has made to its system, and apologised for the inconvenience caused by its inappropriate handling, stating that it had learnt from its errors and would now ensure that its responses were in line with its complaints policy and the Code. However, it did not recognise the entirety of its mistakes, as it would have been proportionate to have offered some compensation, to acknowledge that its mistakes caused a delay for the resident, as well as inconvenience in having to raise repeated complaints. This constituted a failing.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its decision to decline the resident’s request to level their garden to make it more accessible for them.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its complaint handling.

Orders

  1. Within four weeks of the date of this report the landlord is ordered to:
    1. Pay the resident £350 compensation in recognition of its failure to consider adapting her home so that she could enjoy some of her outside space.
    2. Pay the resident £100 in recognition of its mistakes in its complaint handling.
    3. The landlord should consider what steps it can take, if any to help the resident be able to use her outside space in some capacity. It should liaise with the resident and any external bodies. It should then explain its findings to the resident and this service.

Recommendations

  1. The landlord should consider reviewing the training it provides on complaint handling. It should ensure that its operatives are aware of the stipulations it is obligated to adhere to, as laid out in its own policy and the Code.