Folkestone & Hythe District Council (202327295)

REPORT

COMPLAINT 202327295

Folkestone & Hythe District Council

24 July 2024

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 handling of the resident’s proposed adaptation works, and its associated communications.

Background

The resident holds a secure tenancy that began on 12 June 1995. The property is a 2 bedroom semi-detached house, and the landlord is a district council. The occupational therapist (OT) involved in the resident’s case was from the county council. For the purposes of this report, the district council is referred to as ‘the landlord’, and the county council is referred to as ‘the local authority’ (LA).
The resident is registered disabled, suffers with anxiety, and has a medical condition that causes him to regularly faint without warning. In September 2020 the resident referred himself to the LA for an OT assessment. The resident said that his risk of fainting meant that he could only use his first floor bathroom when his daughter, who lived nearby, was in his property. The resident wanted this resolved with the installation of a stairlift, and wet room.
The resident’s first floor wet-room was installed, but the OT assessed that a stairlift would not be safe for his needs, and that a through-floor lift should be considered instead. The resident complained to the LA about its decision, and subsequently referred his case to the Local Government and Social Care Ombudsman (LGSCO).
The LGSCO determined the resident’s case on 14 February 2022. The LA was found to have taken an unreasonable amount of time to make its decision, and was ordered to reconsider it. The OT’s assessment did not subsequently change, and it remained that a through-floor lift was considered the only suitable option for the resident.

Disabled adaptations policy

The landlord’s policy stated that financial restrictions were expected to be applied to all adaptations. It said that it would not approve major adaptations such as extensions where costs exceeded £30,000. It further stated that in exceptional circumstances this could be referred to the landlord’s leadership team for consideration, and review.
The policy said that the landlord would, “provide clear and comprehensive advice and information to tenants”. It further committed to inform and explain to residents where adaptations were refused under the limitations of its policy.

Scope of investigation

The assessment and actions of the LA are outside of the Housing Ombudsman’s jurisdiction, and have already been considered by the LGSCO. As such, the information above regarding the LA and OT is only included for the purpose of context, and does not form part of this investigation.
The resident’s complaint to the landlord described the physical and mental health impact on him, which he said had been caused by the stress and worry of the matters that his complaint concerned. The Ombudsman cannot draw conclusions on the causation of, or liability for, medical or health matters. If the resident wished to pursue these aspects of his complaint, he could consider making a personal injury insurance claim, or obtain independent legal advice. Nonetheless, consideration has been given to the general distress which the situation may have caused the resident. Any reference in this report to the health impacts reported by the resident are also for the purpose of context only.

Summary of events

During September 2022 the landlord and its architect discussed the proposed installation of a ‘through floor lift’, which they said would be located where the resident’s kitchen currently was. The architect confirmed to the landlord that it had submitted planning permission for the work. The architect subsequently produced plans and specifications for an extension to the resident’s property, which would contain the lift to the first floor.
On 9 November 2022 the LA’s OT told the landlord that it had spoken with the resident, who had said that he did not want any works started before summer 2023. The landlord confirmed to the OT that it was awaiting planning permission. It said that the tendering for contractors would not be done until 2023, and that works would not start before April 2023. The landlord further stated to the OT that, “the only issue I have come up against for this adaption is that there may be a chance of it being rejected next year due to the cost”. The Ombudsman has seen no evidence that this concern was shared or discussed with the resident.
The next relevant records seen by the Service were from September 2023. In his contact with the Service, the resident said that the landlord had advised him that his adaptation works would begin on 3 September 2023. The Ombudsman has not seen any record of this.
The landlord produced an undated summary document, which stated that the resident’s adaptations project had been reviewed by its chief housing manager, and had “become financially unviable”. The summary document detailed the value of the winning tender, the subsequent variations that had been submitted that had significantly increased the cost, and the impact that this would have on its overall adaptations budget and works. It stated that it would be able to approve a management move for the resident with the support of the OT. It said that this should be to a ground floor property, that it would adapt to meet the resident’s needs as required.
On 21 September 2023 the landlord and OT visited the resident and his daughter to discuss its decision not to proceed with the adaptations to his home. The landlord completed a record of its visit. The record noted that the resident had already guessed that the work was not going ahead, and his disappointment at the news.
Following its visit, the landlord put a summary of its advice in writing to the resident, which it said was to allow him to digest all the information, and make an informed decision. The landlord’s key points were as follows:
1. It stated that following its procurement process its preferred contractor had repriced items, which had significantly increased the original quotation. It said that the cost now equated to a quarter of its annual disabled adaptation budget.
2. It acknowledged that the news would be unwelcome to the resident, and apologised that it had come so far into the project, but said that it could not have been foreseen this prior to it getting the tender prices.
3. It explained the demand for and volume of adaptations, and its obligations to obtain best value for money with public funds. It said that it gave careful consideration before refusing adaptation works, and had discussed the resident’s case in detail.
4. It said that if the resident wished to move property, it had gained approval for a management move, which the OT would support. It said that the resident could also seek a mutual exchange, or stay in his current property, and it would support him with whichever of these 3 options he chose.
5. It stated that it would cover the resident’s removal costs if he did move to another property.
On 25 September 2023 the landlord sent a “rehousing information” letter to the resident, which further explained the management move that it was offering him, and the actions he would need to take. It recommended that the resident progress his application even if he were unsure about moving, as it would keep his options open.
On 4 October 2023 the resident made his complaint to the landlord regarding its decision not to undertake his adaptations, which the landlord acknowledged the same day. The resident’s key points were as follows:
1. He stated that in late 2022 the landlord had told him that, rather than install a through floor lift in his existing property, it would instead build an extension with a lift at the rear.
2. He said that he had had his garden shed and electrics taken down, which the landlord had advised him to do, and was given a start date for the works.
3. He stated that as the works date got closer, the landlord became difficult to contact. He said that when he did eventually make contact, he was told that the works were being reconsidered as they were more expensive than what was originally thought. He said that this had caused him considerable anxiety and distress.
4. He said that the landlord had offered him a management move, but that his family and support network were all close by and he did not want to move.
On 12 October 2023 the landlord issued the resident its stage 1 response. It reiterated the information provided to him at its visit, and in its follow up letter. It empathised with the resident’s disappointment, but advised that it had not upheld his complaint, as it had visited and written to him with full explanations and options. The landlord’s additional key points were as follows:
1. It acknowledged the reasons that the resident did not want to move home. It emphasised that he would have full control over what properties he bid on, and would not be forced to accept somewhere far from his support network.
2. It committed to supporting the resident to ensure any future property could be adapted to his needs, and encouraged him to at least consider all of this.
3. It confirmed that it would reinstate or renew the fence, gate, shed, and garden electrics that the resident had removed in anticipation of the adaptation works.
On 17 October 2023 the resident asked the landlord to escalate his complaint to stage 2 of its process. The resident stated how let down that he felt he had been by the landlord’s decision. He stated the mental and physical health problems that he said had been caused to him by the stress of it. He highlighted that it had taken 3 years to get to this point, in which time he could have moved and settled into a new property.
On 9 November 2023 the landlord issued its stage 2 response to the resident. It explained again the financial figures, and considerations that had led to its decision. The landlord’s additional key points were as follows:
1. It said that regarding the resident’s comments about the time taken to get to that point, the OT recommendations regarding the lift came in late 2021. It stated that with adaptations as extensive as what had been proposed, it was common for the full process to take 2 to 3 years.
2. It noted the resident’s comment that he could have moved home in the meantime. It encouraged him to now consider a move to a more suitable property, and reiterated the support it would offer him towards this.
3. It referred the resident to the Service if he remained dissatisfied.

Assessment and findings

The landlord provided the Service with reasonably comprehensive records. However much of it was from the period when the resident first sought his OT assessment in 2020, up until the time his case was determined by the LGSCO in early 2022. The first records provided that were relevant to the Housing Ombudsman’s investigation were from towards the end of 2022, which evidenced the landlord’s progress with its architect, and liaison with the LA’s OT.
The landlord’s exchange with the OT on 9 November 2022 established that the resident’s adaptation works would not begin before mid-2023, which the OT advised was in line with the resident’s wishes. The landlord’s further comments to the OT confirmed its awareness that the resident’s works may not be approved due to cost.
The next relevant records provided by the landlord were not until some 10 months later, in September 2023, when it informed the resident of its decision that his adaptation works had become “financially unviable”. The landlord evidenced its rationale and process for arriving at this decision, which was in line with the financial restrictions of its policy. The landlord also demonstrated that it handled its communication of its decision to the resident, and his subsequent complaint, in a customer focused manner.
However, despite being aware of the risk that the resident’s adaptation works could become financially unviable, the landlord has failed to demonstrate that it made appropriate, or indeed any efforts to manage the resident’s expectations. The landlord was aware of how important it was to the resident to be able to remain in his property, close to his support network, and of how frustrating he had found the overall adaptations process. The Ombudsman has therefore found service failure with the landlord’s handling of the resident’s proposed adaptation works and its associated communications, and has made a compensation order to this regard.
In February 2022 the LGSCO determined that there had been unreasonable delays following the resident’s OT assessment in 2020, but was clear that its findings related solely to the actions of the LA. As such, any delays in the resident’s overall adaptations process prior to 2022 cannot be attributed to the landlord.
Nevertheless, as district and county councils respectively, it was understandable that the resident may have viewed the landlord and LA as a single entity. This was demonstrated in some of his communications to the landlord, where he referred to the findings of the LGSCO as if they applied to the landlord. It was therefore understandable that the 3 years it took to get to the point that the resident’s adaptation works were due to begin had felt frustratingly protracted to him, albeit the landlord handled its part of the process in a timely manner.
The landlord was aware that, having lived in his property for around 30 years, the resident had a support network in place that greatly assisted him to cope with his health issues. The landlord was also aware that this made the resident anxious to remain in his property. It is therefore reasonable to conclude that the landlord fully understood how important its proposed adaptation works were to the resident, and should have been aware of the need to empathetically manage his expectations.
The value of the winning tender for the resident’s works was significantly more than the amount stated in the landlord’s policy where financial restrictions applied. The contractor subsequently submitted variations that increased this cost still further. The landlord explanations to the resident of its decision not to proceed with the works referred to it being unable to anticipate the cost prior to the tender process. It further highlighted that it could not have foreseen the subsequent increases.
While this may have been true to say, it is also reasonable to conclude that the landlord’s qualified staff would have been aware of the financial restrictions of its policy, and had some expectation regarding the likely cost of such substantial works. This was evidenced by the landlord’s comments to the OT in November 2022, prior to the tender process, expressing its concerns that the works may not be approved due to cost. As such, it would have been reasonable for the landlord to prepare the resident for this eventuality.
It is acknowledged that the landlord’s decision that the works were financially unviable would have been very disappointing to the resident regardless of circumstances. However, this could have been at least somewhat mitigated had he been forewarned of this risk once the scope of work was established in the latter part of 2022. Had the landlord done this, the resident may have had the opportunity to weigh up his alternative options, and mentally prepare himself for that potential outcome. Instead, the landlord has failed to demonstrate that it gave the resident any indication at all that adaptation works could be refused due to cost.
The landlord provided no records of its 2023 contacts with the resident prior to its communication of its decision to him in September 2023. However, the resident told the Service that the landlord had advised him a works start date of 3 September 2023. His complaint to the landlord described the garden preparations he had made ahead of the works, and the difficulties that he had had contacting the landlord as the start date drew closer.
The resident’s complaint also stated that, when he did eventually get through to the landlord, it advised him that it was reviewing the costs, and he described the worry that this caused him so late in the process. It is unclear precisely when this contact took place, as the landlord has provided no relevant records. However, the landlord did not dispute the resident’s description of events in his complaint. As such, it is reasonable to conclude that the landlord’s first advice to the resident that his works may not go ahead due to cost was in the weeks leading up to them, and at the very least several months after the landlord had first suspected this could be the case.
The landlord’s adaptations policy stated its aim to provide “clear and comprehensive advice and information to tenants”. Therefore, while the landlord’s decision not to proceed with the resident’s works was in line with its policy, its failure to reasonably manage his expectations was not.
It was appropriate for the landlord to visit the resident to advise its decision to him in person, and discuss his housing options, which it did on 21 September 2023. At the visit the landlord provided the resident a full explanation of why his adaptations had been refused, which was in line with the commitment stated in its policy. Following its visit, the landlord swiftly provided the resident with a written summary of their discussion and its position, which would have ensured he had all the relevant information to hand.
It was further reasonable that the landlord had sought approval to offer the resident a management move ahead of meeting him, which demonstrated a customer and resolution focused approach. The landlord reinstated the garden items that the resident had moved in preparation for the works. Through the landlord’s complaint process it continued to advise the resident of his options, committed to supporting him, and offered to cover his removal costs if he did move property. The landlord therefore acted reasonably in all regards from the time that it made its decision that the resident’s works had become financially unviable.
While the landlord’s decision regarding the resident’s adaptation works was in line with its policy, and its communication of it and subsequent actions reasonable, its failure to manage the resident’s expectations caused him significant undue time, trouble, and distress. The Ombudsman’s Remedies Guidance recognises the fact that ‘aggravating factors’ will make the emotional impact experienced by an individual resident unique to them. This was particularly relevant in this instance for the reasons detailed above, and has been considered in the Ombudsman’s compensation award.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s handling of the resident’s proposed adaptation works, and its associated communications.

Reasons

The adaptations process took around 3 years from when the resident first referred himself to the OT. The resident’s frustration at this was entirely understandable, particularly when the main works did not proceed. However the delays identified by the LGSCO only related to the actions of the LA, and the landlord largely acted in a timely manner.
The landlord evidenced its consideration of the costs of the resident’s proposed adaptation works, and its decision not to proceed was in line with its policy. The landlord’s approval of a management move, and overall communication of its decision to the resident, including his complaint, was handled in a customer and resolution focused manner, and again in line with its policy.
The landlord provided no record of its contact with the resident from late 2022, until it explained its decision to him in September 2023. As such it failed to demonstrate any efforts to appropriately manage his expectations. This was despite the landlord suspecting from November 2022 that the resident’s works may be too costly to be approved, and knowing how it important it was to the resident to be able to remain in his property.
The landlord’s decision that the resident’s works were financially unviable would have been very disappointing to him under any circumstances. However, had the landlord clearly explained the potential outcomes to the resident from the outset, in line with its policy, it may have been able to mitigate his disappointment, and allowed him time to consider his housing options. The landlord’s failure to manage the resident’s expectations therefore caused him undue time, trouble, and distress.

Orders

The Ombudsman orders that within 4 weeks the landlord:
1. Writes to the resident to apologise for the service failings identified in this report.
2. Pays the resident £450 compensation for the time, trouble, and distress caused by the service failings identified in this report.
The landlord should evidence compliance with these orders to this Service within 4 weeks of the date of this report.