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Birmingham City Council (202121986)

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REPORT

COMPLAINT 202121986

 

Birmingham City Council 6 June 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 request to repair and replace slabs in the front garden/driveway of the property.

 

  1. The landlord’s complaints handling has also been investigated.

 

Background

 

  1. The resident occupies the property, which is a three-bedroom house, under a secure tenancy agreement with the landlord. The tenancy started on 31 May 2021. The resident is disabled. He uses crutches and a wheelchair to mobilise.

 

  1. On 24 May 2021 the resident attended a viewing of the property, during which he says he raised a number of repair issue, including a broken manhole in the front garden and broken and cracked slabs in the front garden. After moving into the property, the resident contacted the landlord to carry out the repairs. The resident says the landlord’s contractors attended the property on three occasions and declined to repair or replace the slabs. The resident says the landlord’s repairs team told him that the works were not adaptations.

 

  1. The resident complained in June 2021 that he had been informed during the viewing that the driveway and manhole would be ‘fixed and redone’ but that this had not happened. He said that he was ‘physically disabled’ and unable to leave the property to get to the footpath or car because the ground was uneven and the missing slabs were a ‘major hazard’. He also referred to having a ‘severe mental illness’ and that he felt trapped, isolated and suicidal since moving into the property. He said this wasn’t an issue that could be addressed by the adaptations team. His request to the landlord was ‘Put in the slabs and sort out the front drive/garden’.

 

  1. The landlord’s first stage complaint response said that the widening of the pathway to accommodate a wheelchair was an adaptation which required an occupational therapist assessment. This initial complaint response did not address the issue of installing new slabs to the garden/ driveway, which was raised as the specific issue. On 10 November 2021 the landlord issued its final response to the complaint; it confirmed that ‘driveways are not part of repairs’ and signposted the resident to the Housing Ombudsman Service.

 

  1. The landlord removed the slabs in June 2021. The manhole was repaired in July 2021. The resident’s correspondence with this Service states that the removal of the slabs has exposed a greater uneven surface area which is now a bigger hazard for her partner. He says he wants the landlord to provide a hard standing even driveway, so he can safely use his wheelchair to and from the front door.

 

Assessment and findings

 

The front driveway/garden area

 

  1. When investigating the landlord’s decision not to repair or replace the slabs in the garden / driveway, the Ombudsman will look at whether the landlord followed its policies and procedures, followed the law, and treated the resident fairly, taking into account all the circumstances.

 

  1. In its final stage complaint response dated 10 November, the landlord referred to the area in front of the house as a driveway and said it had no responsibility to carry out repairs. In its response of 7 March 2022 to questions posed by the Housing Ombudsman Service the landlord changed its position and confirmed that it considered the area to be a garden for which the resident bore responsibility. The two areas have different functions and use. The landlord should have adopted a clear position of what the space was before replying to the resident that driveways were not within its the repairs obligation.

 

  1. Nevertheless, whether the area is a garden or driveway the landlord’s repairing obligations are the same in that there are no obligations to repair, either contractual (as set out in the conditions of tenancy document) or implied by s. 11 of the Landlord and Tenant Act 1985.

 

  1. The landlord’s position is that it did not lay the slabs and suggests that they were laid by the former tenant. The landlord removed the slabs in June 2021. Given the resident’s complaint that the slabs were cracked and broken and potentially dangerous this was an appropriate step to take.

 

  1. In the landlord’s first stage complaint response it says that the widening of the pathway to facilitate wheelchair access to and from the front door was an adaptation requiring an assessment by an occupational therapist. The resident was directed to the occupational therapy team for an assessment. This seems reasonable as matters relating to the widening of paths to make them wheelchair accessible would not normally be within the remit of the repair’s team and would instead be works a landlord would carry out following recommendations made by an occupational therapy team. The outcome of any occupational therapy assessment is not known and if the resident has not yet progressed the case through such a process, it is advised that he now do so. The Occupational Therapist has the authority and expertise to assess the suitability of the property in the context of household needs and, once in receipt of their findings, the landlord will be required to respond in an appropriate manner.

 

  1. Although the landlord does not have an obligation to lay slabs, or repair / replace them, its Repairs Policy Document, contains a provision which sets out circumstance it may provide paving. Clause 10.3.1.5 headed’ Other Areas Of Paving’ states, “Generally no other areas of paving or paths will be provided, but there may be special cases where additional paving has been provided previously or would seem to be appropriate at the time of inspection, i.e. for tenants with disabilities etc.”

 

  1. This provision in the Repairs Policy Document allows the landlord a discretion to lay additional paving in an area if it considers there are special reasons which might make it appropriate to do so. The specific example provided is when a tenant has disabilities. The landlord’s records show that it is aware of the resident’s disabilities.

 

  1. The landlord’s internal email communication shows it had considered the repairs in relation to its contractual repair obligations and found there was none. The landlord has not however, considered the resident’s request in line with clause

10.3.1.5 which gives the landlord discretion to lay additional paving for disabled tenants.

 

  1. Although the landlord does not have a statutory or contractual obligation to repair or replace the slabs, its Repairs Policy Document contains a more generous provision which the landlord has not considered. The Ombudsman considers there has been service failure because the landlord did not consider the resident’s request under a discretion contained in its policy.

 

  1. The resident says the slabs were an issue from the outset of the tenancy and at the viewing the housing officer said they would be repaired. There is internal email between the landlord and its contractor which questions why the housing officer would say this. Aside from the resident’s version of account there is no evidence that the housing officer said the slabs would be repaired or replaced. This service is therefore not able to draw a conclusion on this point.

 

  1. The landlord hasn’t specifically addressed the resident’s view that he is liable to trips and falls and that he is effectively having to stay indoors due to his fears. It is not reasonable for the landlord to ignore the resident’s safety concerns and rely on its strict contractual obligations to say it won’t carry out the requested works. It should have assessed whether other measures could have alleviated some of the resident’s concerns.

 

  1. To remedy the service failures identified here, an order of compensation has been included below, together with an order for the landlord to consider additional works to the front driveway area, in accordance with its discretionary powers. The resident is also recommended to consider progressing his concerns to the Occupational Therapist however, to ensure that his household needs are assessed.

 

Slab replacement consideration

 

  1. Having reviewed the policies concerning the garden/driveway, it states that “tenants are responsible for the repair and maintenance of any alteration to the property or item or structure installed by them including drives and additional slabbing or pathways”. The landlord is only responsible for a single row of slabs from the front gate/boundary to the front door for access purposes. In this case, the previous tenant installed the slabs so the responsibility would not fall on the resident to repair and maintain. Whilst, when the previous tenant moved out, the landlord was unable to inspect the property on completion of the void works, due to covid restrictions, this did not absolve the landlord of its responsibility to either request removal by the previous tenant, or assume responsibility of the slabs.

 

  1. Upon request for information from the landlord, the landlord confirmed that it attempted to remove all of the slabs on 7 June 2021 – leaving only a front access part; however, it explained the resident requested that only the damaged slabs needed to be removed. Having spoken to the resident, they explained that this was not the case and they did not prevent the removal of the remaining slabs. In any event, the landlord has confirmed it will remove the remaining slabs and ensure the area is level as a gesture of goodwill. This will therefore return the property to the condition it was in before the previous tenant installed the slabs, and this is appropriate.

 

  1. Although the resident is not responsible for the repair and maintenance of the slabs as they did not install them, should the resident choose to keep them against the landlord’s decision to remove them, the responsibility of maintenance and repair will fall on the resident.

 

  1. Having discussed this matter with the resident, the resident explained they do not consider the landlord’s response of removing all of the remaining slabs to be appropriate because they do not believe the area will be level for ease of access. While this Service acknowledges the resident’s position and appreciates the circumstances, should the resident require the landlord to make alterations for their specific vulnerabilities that are not within its responsibility, the best course of action is to contact an occupational therapist for an assessment which will outline steps the landlord can take to accommodate the resident’s specific needs. In any event, a recommendation is included below regarding the landlord’s decision to remove the remaining slabs should the resident accept.

 

  1. Finally, there appears to be an issue in relation to the nature of the front pathway, namely whether it is a driveway or garden. The landlord previously explained that it is a garden and the resident also stated that it should be considered a driveway based on information they found which is outlined on the landlord’s website. When considering the differences between the nature of the pathway, it appears that the landlord will have a different responsibility depending on whether the pathway is a driveway or garden, though it is important to note this does not have any bearing on the landlord’s responsibility in relation to the replacement of the slabs. A recommendation is included below for the landlord to clarify what the front area of the property is and its obligation in relation to this, as well as the resident’s obligations.

 

The landlord’s complaints handling

 

  1. The resident has not complained about the delay at the second stage of the complaints procedure. The Ombudsman notes that the resident escalated the complaint on 26 July 2021. Under the landlord’s complaints policy, any complaint progressing under stage 2 will be reviewed and a response provided within 20 working days. A decision was due on 23 August 2021. The landlord made its decision on 10 November 2021, after being chased by the resident on 9 November 2021. In the landlord’s response, it did not apologise nor provide an explanation for the delay. The Ombudsman considers that there was an unreasonable delay at this stage in providing the resident with a final response.

 

  1. It is also noted that the landlord’s complaints responses did not specifically respond to the safety concerns he raised. It is expected that a landlord will identify and respond to issues raised through its complaints process and therefore another indication of service failure in its complaints handling here that it did not do so.

 

  1. The Ombudsman considers that there was service failure in the landlord’s complaints handling and that a proportionate amount of compensation is due, in line with the limits set out in the Ombudsman’s remedies guidance.

 

Determination

 

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure with respect to the landlord’s response to the resident’s request for works to take place to the front driveway/garden at the property.
  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaint handling.

 

Orders and recommendations

 

Orders

 

  1. Within 28 days of the date of this report the landlord is ordered to:

 

a.     Pay the resident £100 in recognition of the identified failing in not considering the resident’s request in line with the discretionary clause 10.3.1.5 of the Repairs Policy Document.

b.     Pay the resident £50 in recognition of the delay in issuing a decision at stage 2 of the complaints procedure.

c.      In line with the discretion afforded at clause 10.3.1.5 of the Repairs Policy Document consider laying paving to the garden/driveway, with a written response provided to the resident in this respect.

d.     The landlord to evidence compliance with the above orders to this Service by the deadline detailed.

 

Recommendation

 

  1. It is recommended that:

 

a.     The landlord should consider the report from the Occupational Therapist, once the resident has completed this.

b.     The landlord should reoffer its goodwill gesture of removing the remaining slabs at the front of the property.

c.      The landlord should provide a written response, supported by evidence, to the resident, clarifying its position on whether the front area of the property is a garden or driveway, and its obligations in relation to this, as well as the resident’s obligations.