Wolverhampton City Council (202217517)

REPORT

COMPLAINT 202217517

Wolverhampton City Council

17 August 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 the landlord’s response to the resident’s:

1. request to install fencing around the boundary of her front garden.
2. reasonable adjustment request to increase the height of the fencing around the boundary of her front garden.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 42 (a) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside the Ombudsman’s jurisdiction:

2. The landlord’s response to the resident’s reasonable adjustment request to increase the height of the fencing around the boundary of her front garden.

4. Paragraph 42 (a) of the Scheme says the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s [landlord’s] complaints procedure.
5. On 16 December 2022, the resident complained to the landlord that it unfairly refused her reasonable adjustment request to increase the height of the fencing around the boundary of her front garden. On 21 December 2022, the landlord issued its stage one complaint response to the resident. However, as this complaint has not completed the landlord’s complaints procedure, this Service is currently unable to investigate this issue. If the resident is unhappy with the landlord’s handling of her reasonable adjustment request, she can escalate her complaint to stage two of the landlord’s complaints procedure. The resident may be able to refer this complaint to the Ombudsman if she remains dissatisfied once she has received the landlord’s final response to her complaint. As such, this investigation will therefore, only consider the landlord’s handling of the resident’s request to install fencing around the boundary of her front garden.

Background

6. The resident is a secure tenant of a property owned by the landlord and managed by a management agent, which has responded to the resident’s complaint on behalf of the landlord. For ease of reference, this report will refer to the landlord to mean the landlord and its management agent.
7. The resident lives at the property with her children, one of whom has a disability and requires constant supervision. The landlord is aware of these vulnerabilities.
8. On 18 January 2022, the resident wrote to the landlord to request permission to erect a fence around the boundary of her front garden, at her own expense. She explained that internal adaptions to her property were due to commence in the summer, which would make her back garden temporarily inaccessible. She highlighted that due to her son’s disability, he had no awareness of danger and would frequently abscond when given the opportunity. Therefore, the security from a fence around the boundary of her front garden would accommodate both her son’s short-term and long-term needs when spending time outdoors. On 15 February 2022, the landlord refused the resident’s request, explaining that the housing estate was considered as ‘open plan’ and it therefore did not allow residents in the area to have fences in front gardens. Subsequently, on 17 February 2022, the resident appealed the landlord’s decision, however, on 11 March 2022, the landlord rejected the resident’s appeal and upheld its original decision.
9. In September 2022, following consultation of its residents on the housing estate, the landlord decided it would no longer adopt an ‘open plan’ approach, and implemented a new fencing policy. The policy stipulated that on receipt of a request to erect a fence, neighbouring properties would be consulted in the first instance. If an objection were received by any neighbours, the applicant’s request would be declined. Under this policy the landlord considered the resident’s request to erect a fence again, however, on 19 October 2022, it refused the resident’s application, stating that it had received an objection to the proposal from a neighbouring property.
10. The resident raised a complaint with the landlord on 26 October 2022. She stated that:

1. she was frustrated with the length of time taken to issue its final decision.

2. the landlord had treated her unfairly, as other residents on the housing estate had erected fences around the boundary of their front gardens.
3. it was unclear how the landlord would differentiate between malicious objections and genuine objections received from neighbouring properties.
4. the landlord had failed to consider her son’s needs in line with the Equality Act 2010.
5. a staff member told her it was the resident’s ‘job’ to keep her child safe, and that it could not make any exceptions for her as everyone had to be treated the same.

11. On 18 November 2022, the landlord sent its stage one complaint response to the resident. In this it:

1. apologised for the delay to implement its new fencing policy but explained that consulting and developing new policies takes time. Additionally, when it initially refused the resident’s request, it was because it incorrectly assumed that it would be a planning breach to allow her to erect a front boundary fence.
2. agreed that prior to the adoption of its fencing policy, some properties were permitted to have front boundary fencing, but explained that these were installed prior to the landlord’s management of the estate.
3. highlighted that as the resident shared a boundary with her neighbour, her neighbour’s wishes needed to be considered.
4. explained that in some instances where it had granted permission, this was because of recommendations from external agencies such as the police or social services. Furthermore, it had previously asked the resident to submit supporting statements from either a social worker or an occupational therapist, which would have overruled its open plan policy and fencing policy, and permission to erect a front boundary fence would have been granted.
5. disputed the resident’s account of the conversations between its staff member.
6. advised that it had already confirmed to the resident that as a reasonable adjustment, it would approve temporary front boundary fencing for the duration of the rear garden being inaccessible during the internal adaptation works at her property.

12. Following submission of a supporting statement from a social worker, on 25 November 2022, the landlord approved the resident’s request to erect a front boundary fence. However, on 27 November 2022, the resident emailed the landlord to escalate her complaint to stage two of its complaints process. She disputed the landlord’s claim that it had previously requested a supporting statement from a social worker and highlighted that the rejection letters sent by the landlord on 15 February 2022, 11 March 2022, and 19 October 2022, did not state that refusal was because she had not provided a supporting statement. Additionally, she expressed her frustration with the fact that she had been provided with three varied reasons why permission was not granted, leading her to believe that the landlord was laying obstacles at each step in the process. As a resolution to her complaint, the resident requested for the landlord to apologise for its discrimination and mistreatment against her son.
13. The landlord sent its stage two complaint response on 16 December 2022. It reiterated its stance set out in its stage one response and explained that it found no information to substantiate the resident’s claims of it not being empathetic to her situation. However, it offered to meet with the resident to gain better clarity on how it could support her and her family.
14. The resident contacted this Service on 16 December 2022, to ask for the complaint to be investigated. She told this Service that the responses received from the landlord did not address the concerns she had raised.

Scope of investigation

15. The resident made a previous request to the landlord to erect a fence around the boundary of her front garden in 2018. Whilst the historic complaint adds context to the current issues, the Ombudsman cannot consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable time of usually six months of the matters arising. The records show the resident began to formally complain about this matter in 2022. As such, this report will focus on the events from 18 January 2022 onwards.
16. Additionally, part of the resident’s complaint relates to the landlord’s failure to consider her son’s needs in accordance with the Equality Act 2010. The Ombudsman cannot make a finding of discrimination under the Equalities Act 2010, since this is a legal matter that would be better suited to a court to decide. Paragraph 42 (g) of the Scheme says the Ombudsman will not investigate complaints that ‘concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure’. We are therefore unable to consider whether the landlord has engaged in discriminatory practices towards the resident’s son in a legal sense, but we can consider whether the landlord responded fairly and appropriately to the resident’s concerns in line with its relevant policies and procedures and industry best practice. The resident may wish to seek independent advice about any legal recourse she may have about this matter.

Assessment and findings

The landlord’s response to the resident’s request to install fencing around the boundary of her front garden.

17. The resident’s tenancy agreement states that tenants must not erect any fence, structure, shed or outbuilding without written consent from the landlord. Therefore, it was appropriate that in the first instance, the resident sought permission from the landlord to erect a fence around the boundary of her front garden.
18. The landlord has told this Service that on receipt of the resident’s initial request, it did not have a policy in place for approving fencing applications. Without a clear and detailed policy on fencing, the Ombudsman cannot determine that the landlord’s decision to reject the resident’s request was reached fairly and reasonably. As the resident highlighted the importance of a front garden fence for her son’s safety due to his disability, the Ombudsman would have expected the landlord to have taken these mitigating circumstances into consideration before making its decision. To further explain, the public sector equality duty is a duty on public authorities [the landlord in this case] to consider how their decisions affect people protected under the Equality Act 2010. They have an obligation to think about the needs of people who may be disadvantaged or suffer inequality, when they make decisions about how they provide their services and implement policies. The Ombudsman has seen no evidence in the landlord’s responses to the resident on 15 February 2022, 11 March 2022, and 19 October 2022, that it addressed or fairly regarded her son’s need for a front boundary fence in view of his disability. This is also apparent from the landlord’s internal records which demonstrate that it focused on whether it should uphold its open plan design, and what the property deeds stipulated rather than making reasonable adjustments. As a result, the resident was given three different and unrelated explanations as to why her applications were rejected. Understandably, because of the landlord’s actions, the resident was made to feel as though her son’s needs were being ignored.
19. The landlord has stated to the resident and this Service that had it received recommendation from a social worker or occupational therapist, prior to, and after implementation of its fencing policy, it would have approved the resident’s application to erect a front boundary fence. From the evidence provided to this service, the landlord’s internal records confirm that on 11 March 2022, it spoke with the resident and obtained the names of her son’s occupational therapist and social worker who were in support of her application to erect a front boundary fence on medical grounds. Additionally, it had access to the resident’s tenancy file which included a detailed occupational therapy housing report carried out on 22 February 2021. The Ombudsman notes that the occupational therapy housing report clearly indicated the resident and her son’s needs when spending time outdoors. Therefore, in the Ombudsman’s view, prior to its approval on 25 November 2022, the landlord had enough information to make a favourable decision to progress the resident’s application to erect a front boundary fence, subject to its requirement for an official letter of support.
20. To demonstrate its empathy and willingness to assist the resident where possible, the landlord could have contacted the social worker or occupational therapist directly (with the resident’s consent) to request any further information it needed. Alternatively, the Ombudsman would have expected to see a record of the landlord informing the resident that it specifically required an official letter of support. The Ombudsman is not satisfied that the landlord went far enough to demonstrate its commitment to ‘removing barriers wherever they occur and in relation to housing,’ as set out in its Equality, Diversity, and Inclusion Policy. As a result, the resident waited ten months for approval by the landlord to install a fence around the boundary of her front garden. This was unreasonable and would have understandably caused distress and inconvenience to the resident, as she was left not knowing what outdoor options were available to her son in the absence of her rear garden during internal works to her property.
21. The Ombudsman notes the landlord’s assertation that it offered to approve temporary front boundary fencing for the resident as a reasonable adjustment. However, this Service has seen no written record to demonstrate when this was offered to the resident or that she refused this. Additionally, the resident’s claims regarding a staff member’s conduct during a conversation, differ to the staff member’s account of events. The Ombudsman would have expected the landlord to have kept a clear record of this conversation, however, there is also no written record of when this discussion took place or what was discussed. Keeping an accurate audit trail is an important part of a landlord’s service delivery, and the landlord should have systems in place to maintain accurate records of any meetings in-person or discussions over the telephone, so that it can satisfy itself, the resident (and ultimately the Ombudsman if necessary), that it took all reasonable steps when handling the resident’s concerns. It will therefore be recommended that the landlord reviews its record keeping practices to reduce the risk of similar issues occurring in the future. In the absence of clear records, the Ombudsman cannot conclude with certainty that the landlord offered the resident temporary fencing.
22. Following the feedback it had received from its residents, paired with the inconsistent decision making that had been highlighted by the resident, it was appropriate for the landlord to develop a fencing policy. This demonstrated that it valued its residents’ voices, sought an approach that would ensure fairness and equality across the housing estate, and took advantage of an opportunity to improve landlord-resident relationships.
23. The Ombudsman notes that the landlord has offered an apology to the resident for its delay to implement its fencing policy, and it offered to meet with her to discuss her ongoing concerns regarding the need for fencing to support her child. The Ombudsman’s role is to consider whether the redress offered by the landlord has put things right and has resolved the resident’s issue satisfactorily in the circumstances. To do this, the Ombudsman must consider whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
24. In the Ombudsman’s opinion, an apology does not proportionately reflect the impact caused to the resident from the landlord’s errors. For these reasons, the Ombudsman has concluded that there was severe maladministration by the landlord in its response to the resident’s request to install fencing around the boundary of her front garden.
25. The resident has told this Service that as a resolution to her complaint, she would like the landlord to reimburse her for the cost to install the front boundary fence, as she believes it was the landlord’s obligation under its reasonable adjustment policy. The Ombudsman is unable to take this factor into consideration of appropriate redress as there is no commitment within the landlord’s reasonable adjustment policy or fencing policy, to pay for fence installations. As explained above, the resident’s argument that she should not have to pay for the fencing as it is a reasonable adjustment needs to be considered by the landlord through its complaints process before the Ombudsman can address it.
26. The Ombudsman’s Remedies Guidance, which is published on our website, sets out our service’s approach when seeking to resolve a dispute. Where there has been a determination of severe maladministration which has had a significantphysical or emotional impact on the resident, the guidance states that landlords may be ordered to offer residents a financial remedy of £600 to £1000, to put things right. The landlord has approved the resident’s application, and this Service has received confirmation from the resident that fencing around the boundary of her front garden has now been erected. In view of this, the Ombudsman is inclined to consider the lower end of the scale in terms of compensation, whist still recognising the significant effect of the landlord’s errors on the resident and her household. Therefore, the landlord should pay the resident £700 to recognise the distress and inconvenience caused by its errors in response to her request to install fencing.
27. The Ombudsman will also make an order for the landlord to provide the resident with an apology from a senior director andcarry out empathy and equality training with its staff to ensure it is upholding its obligation and commitment to ‘actively consider equality and inclusion in very practical ways.’ This will ensure that ‘decisions are made based on the deepest understanding of their implications for equality, diversity and inclusion,’ as set out in the landlord’s Equality, Diversity & Inclusion Policy.
28. Finally, the landlord should arrange for a senior management review to be conducted into this case to identify any additional learning and improvement, and report to this Service the outcome.

Determination

29. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was severe maladministration by the landlord in respect of its response to the resident’s request to install fencing around the boundary of her front garden.

Orders and recommendations

Orders

30. The landlord is ordered to pay the resident £700 to reflect the distress and inconvenience caused to the resident, because of the repeated barriers placed to obtain approval to install a fence around the boundary of her front garden.
31. This amount must be paid within four weeks of the date of this determination.
32. Within four weeks of the date of this determination the landlord should:

1. provide the resident with a written apology for the failures identified within this report. The apology is to be made by a senior director.
2. carry out empathy and equality training with its staff to ensure it is upholding its obligation and commitment to ‘actively consider equality and inclusion in very practical ways.’ This will ensure that ‘decisions are made based on the deepest understanding of their implications for equality, diversity and inclusion,’ as set out in the landlord’s Equality, Diversity & Inclusion Policy.
3. arrange for a senior management review to be conducted into this case to identify any additional learning and improvement, and report to this Service the outcome.

Recommendations

33. The landlord should review its record keeping practices to ensure it keeps clear, accurate and comprehensive records of discussions in-person or over the telephone.
34. The landlord should review its fencing policy to clarify the process for assessing objections from other residents and confirm how the landlord will manage objections which are considered to be malicious.