Waverley Borough Council (202334911)

REPORT

COMPLAINT 202334911

Waverley Borough Council

3 September 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:
1. Handling of the installation of a wet room.
2. Knowledge and information management.

Background

The resident has a secure tenancy with the landlord that started in 2021. The property is a bungalow. The landlord is a local council. It is aware that the resident’s wife has chronic obstructive pulmonary disease (COPD); fibromyalgia; polymyositis which causes her to have regular falls; and reduced mobility. For the purposes of this report, I shall refer to them both as “the resident”. I have also used “the landlord” when referring to the council, its contractor and sub-contractor involved in the works.
In April 2022 an occupational therapist (the OT), who was employed by the local council, gave the landlord details of the difficulties facing the resident in using the bath. She said she recommended a wet room with improved heating as that would meet the resident’s long-term needs. The OT noted that the resident wanted a shower, not a wet room and would not make a formal recommendation at that time as the resident did not agree with it. The OT suggested the landlord contact the resident about the adaptations that might be available.
In August 2022 the OT again told the landlord that she would support a wet room but not a shower cubicle. She said the resident had asked her not to proceed at that time and she was not therefore making a formal recommendation.
In November 2022 the landlord received a report from the OT. This explained that the resident was at risk of falling in the bath and getting in and out of the bath was increasing that risk. The report included a recommendation for a level-access shower. This report noted that a non-slip floor was required which was “appropriate for a wet room environment”.
We understand that the landlord’s aids and adaptations officer visited the resident in December 2022; however, no note was kept of that meeting.
In January 2023 the OT told the resident that she understood their GP had requested avoiding the use of a shower curtain. She repeated her recommendation for a wet room/level-access shower with a non-slip floor and no cubicle walls around the shower. She said this would meet both the resident’s short and long-term needs. She explained the reasons for her recommendation saying a fall in a shower cubicle was more hazardous than in a wet room due to the challenge of assisting them in a confined space. The OT added there was no requirement for a shower screen in the wet room. This letter was copied to the landlord.
In May 2023 an asbestos survey was carried out. On 9 June 2023 there was a pre-inspection visit. We have not seen any notes relating to that visit. The landlord started work on the wet room on 12 June 2023 and we understand it continued for the rest of that week.
On 21 June 2023 the resident made a formal complaint to the landlord by email. They said the work to install the new wet room was unfinished as there was no shower screen. They also said oil gloss paint had been used, despite them asking the contractor not to do so because of allergies, and they had great difficulty breathing the whole weekend due to the paint fumes and dust, which had caused great anxiety.
Two days later the landlord issued its stage one complaint response. It said it was unfortunate that the installation of the shower screen was delayed because it was bespoke and took longer to make. It said, however, it should have communicated more clearly the reasons for the delay. It said the operatives were not aware of any allergies but said they had maintained proper ventilation. The landlord explained how the resident could escalate the complaint.
On 10 July 2023 the resident asked the landlord to escalate the complaint. They said the landlord should have ordered the shower screen earlier as this had led to severe inconvenience and the landlord had not showed empathy towards them. They said they had not been made aware of the type of paint that would be used and had “great breathing difficulties” for a whole week after. They also expressed concern that, as a registered disabled person and being vulnerable, they were not treated in the correct manner as stated by Disability Rights UK and this had impacted on their health.
On 26 July 2024 the landlord issued its stage 2 complaint response. It said it was sorry that the stage one complaint response was lacking in empathy and acknowledged how difficult it must have been for the resident to have coped while the works were in progress. The landlord also acknowledged that the new shower screen should have been ordered before the start of the works and it had reminded its subcontractors that, in future, they should make sure they had all the materials required before works are started.
The landlord said that it had discussed the paint issue with the aids and adaptations officer, and he did not recall the resident mentioning that they were allergic to oil-based paint during his pre-inspection visit on 9 June 2023. It said that, had the resident mentioned this, then he would have ensured that the operative used another type of paint. The aids and adaptations officer said that he believed that the operative did not understand the resident’s concerns about the type of paint to be used because he did not have a good understanding of English. The landlord said it accepted it was important that it had information about any allergies suffered before work started and it would ensure that it would raise the issue of allergies in all pre-inspections.
The landlord also said the aids and adaptations officer was in discussions with the resident and the OT about the possibility of fitting a larger shower screen. The landlord explained the OT had been reluctant to approve the installation of a shower screen in place of a shower curtain because of the difficulties this might cause the residents in using the toilet and it was not until May 2023 that the OT was finally able to agree the layout. The landlord signposted the resident to the Ombudsman.
In October 2023 the landlord installed a larger shower screen in the wet room. The resident also reported problems at that time with the floor which they said was sagging or “bubbling” and that water was not draining away properly.
In mid-November 2023 the landlord visited the property. On the same day it contacted the OT outlining the resident’s concerns. It noted it had explained to them that, as it was a wet room, there was a small slope that allowed the water to flow towards the drain. The landlord asked the OT for her comments as it seemed the wet room was not entirely what the residents had expected. It also asked for her view on whether or not the installation was suitable for their needs.
In response, the OT said she had spoken to the resident and one problem was that the shower screen did not allow much space to get past the toilet to the shower. She said the previous screen was shorter and easier to get past. The OT said she understood why a larger shower screen had been fitted but her recommendation would be for a smaller screen (but recognised that would not help with the resident’s concern about water on the floor). She said that she believed she had told the resident that the shower floor would slope, and they knew that she had not recommended a shower cubicle. She suggested a wall‑fixed shower seat but said the resident had previously rejected that.
When the resident approached the Ombudsman, they said they had not wanted a wet room but rather an enclosed shower cubicle with a sliding door as the OT had recommended. They said there were several problems – with the drain; the shower room floor and it was difficult to enter the shower due to the longer shower screen. They added they did not believe they had been treated fairly.

Assessment and findings

Scope of the investigation

The Ombudsman may not consider complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. We cannot therefore investigate the actions of the OT as they would be a matter for the Local Government and Social Care Ombudsman under para 42.j of the Scheme.
This Service does not have the power to decide whether a landlord has breached the Equality Act 2010 (which relaced the Disability Discrimination Act). Only the courts can make that decision as these are legal matters which sit outside the landlord’s complaints process. However, we can decide whether a landlord has properly considered its duties under the Equality Act whereby it would be expected to offer reasonable adjustments to assist disabled residents with using their properties.
The resident mentions that their health had been affected by paint fumes during the installation of the wet room. The Ombudsman does not doubt the resident’s comments regarding their health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts or the landlord’s liability insurer as a personal injury claim. However, we can consider any distress and inconvenience the resident may have experienced as a result of errors by the landlord as well as the landlord’s response to the resident’s concerns about their health.

The landlord’s handling of the installation of a wet room

The landlord’s aids and adaptations policy says that an individual will normally qualify for aids and adaptations to the property if they are a tenant and if they have a disability or impairment which has a long-term or significant effect on their ability to carry out normal day-to-day activities in and around the property and/or access essential facilities within the property. The policy also says that a level-access shower or wet room is a ‘medium adaptation’ which may be on the recommendation of an OT or can be directly requested by the resident. The policy adds that the OT’s recommendations will normally form the basis of any scheme of works but the landlord will make the final decision as to whether the works are reasonable or appropriate.
In this case there was involvement of an OT. The landlord acted appropriately by carrying out her recommendations, that is, the installation of a level-access shower. It also followed her specifications including the removal of the bath and fitting of slip-resistant flooring which was “appropriate for a wet room environment”. The report did not make reference to a shower cubicle. We are satisfied that the landlord acted appropriately by making reasonable adjustments to allow the resident to access essential facilities within the property and it has shown consideration for its obligations under the Equality Act.
Despite the OT being clear that there should not be any cubicle walls, the landlord installed a shower screen. It subsequently installed a larger one when water was coming around the screen into the rest of the bathroom. The landlord explained to the Ombudsman it believed, “with the benefit of hindsight”, that it should have insisted that the replacement wet room shower complied with the standard design of a wet room but it believe that its officers had “wanted to be helpful in trying to meet at least some of [the resident’s] requests”. This was a failing by the landlord. We acknowledge its desire to work with the residents and achieve an outcome that was agreeable. However, in this case a professional expert, the OT, had made recommendations which were based on the long and short-term needs of the resident. As the landlord has now recognised, it would have been appropriate for the landlord to have followed these recommendations precisely. The resident would be entitled to refuse the works recommended by the OT, but the landlord could have then refused to carry out any adaptations to the bathroom.
The accounts of both the resident and the OT confirm that the shower area is now difficult for the resident to access. This situation suggests that the aim of the adaptations has not been successful in enabling the resident “to shower safely” (as stated in the OT report). This is because, as the OT explained to the resident, if they were to fall in the more confined space, it might be difficult for others including care staff to give support (when and if required) in a cubicle. An order has therefore been made for the landlord to engage an OT to assess if the wet room is fit for purpose. The landlord should undertake any recommendations that the OT makes or explain why it is unable to do so to the resident and the Ombudsman.
We appreciate that this outcome might not be what the resident wanted. However, the objectives of the aids and adaptations policy include ensuring residents have access to accommodation that enables safe independent living, privacy and dignity; and ensuring any aids/adaptations improve the way in which the individual can live independently within the property. The evidence suggests that the adaptation has not achieved this purpose and therefore it is appropriate for the landlord to take further action as deemed appropriate by an expert.
The resident also raised a concern about the use of oil gloss paint during the installation of the wet room. Given there is no note of the visit by the landlord to resident in early June 2023, we cannot say with any certainty what information the resident gave it about allergies. Given this lack of evidence, it was unfair for the landlord to have assumed that the resident did not mention this fact saying, if they had, a different paint would have been used. Further, if the landlord employed someone who did not understand English very well, it should have in place a process by which important information can be shared – such as by speaking via a third party. The landlord’s actions in responding to the resident’s concerns about the oil-based paint were not reasonable.
The landlord has acknowledged that it is important that it had information about any allergies suffered before work started and it would ensure that it raised the issue of allergies in all pre-inspections. The Ombudsman welcomes this step to prevent the problems experienced by the resident from happening again.
The landlord acknowledged that its communication with the resident about the installation of the first shower screen could have been better. Having reached that conclusion, it would have been appropriate for it to have considered the impact on the resident and what remedy might be suitable. That it did not do so was a further failing.

Compensation

The Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In considering this the Ombudsman takes into account our Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies. Consideration of any aggravating factors (such as a resident’s physical health conditions) may justify an increased award to reflect the specific impact on the resident.
Financial compensation of £400 is appropriate for the evident distress, inconvenience and frustration caused to the resident by the landlord’s failings in this case. Specifically, in not following the recommendations of the OT; by its poor handling of the resident’s allergy and its poor communication about the installation of the first shower screen.
The sums awarded in this report are in line with the Ombudsman’s Remedies Guidance (published on our website) which sets out our approach to compensation. Awards in this range include cases where the landlord has not acted reasonably in installing an adaptation and in its handling of reports of an allergy which had an impact on the household members. The sums ordered reflect the fact that the resident’s vulnerabilities were an aggravating factor.

The landlord’s knowledge and information management

The landlord told us that it had not been possible to evidence some of the actions taken by its staff and that it needed to do more work to ensure that officers stored information properly and in an easily accessible location in accordance with the Ombudsman’s report on Knowledge and Information Management which was published in May 2023. The landlord was unable to provide notes of its meetings with the resident in December 2022 and June 2023 to assist our investigation.
Good records assist landlords to offer efficient and effective services by ensuring that decisions and actions are taken based on good quality information. In terms of complaint handling, if a landlord is asked to explain what happened, and why, good records will enable it to do so. Poor quality or absent records result in the landlord being unable to answer questions, or being unable to provide evidence to support its explanation and this impacts negatively on its credibility and relationships.
It is unclear in this case if records were made and lost, or nor made at all. While we consider there was sufficient information to make firm findings in this case, we consider the landlord’s record management in this case was not appropriate and that was a service failure. We consider an apology to the resident would be proportionate redress for this record keeping failure.
The landlord told us that it recognised that its record keeping had been unsatisfactory and it was in the process of recruiting a member of staff to improve this area. That is a positive step by the landlord to improve its knowledge and information management.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its:
1. Handling of the installation of a wet room.
2. Knowledge and information management.

Orders

The landlord should take the following action within 4 weeks of the date of this report and provide evidence of compliance with these orders to the Ombudsman:
1. A senior manager to apologise in writing to the resident for the failings identified in this report. In doing so, the landlord should have regard to the apologies guidance on our website.
2. Pay the resident the sum of £400 for the impact on them of the landlord’s handling of the installation of a wet room.
3. Within 8 weeks, the landlord should engage an OT to assess if the wet room is fit for purpose particularly in relation to access to the shower.

Recommendation

It is recommended that the landlord visits the property to check the drainage and flooring issues that the resident has reported if it has not done so already.