Brentwood Borough Council (202002909)

REPORT

COMPLAINT 202002909

Brentwood Borough Council

24 December 2020

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 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 application for disability adaptations to her property.

Background and summary of events

2. The resident acts as a representative for her mother. The property is a three bedroom house. In 2018 the resident had the property assigned to her by her mother.
3. On 15 July 2019 the resident raised a formal complaint with the landlord in which she set out the following:
   1. If someone’s health no longer allowed them to move/transfer, the landlord has a duty to adapt the property they are in.
   2. The resident’s mother had had three Social Care Services Occupational Therapist assessments, “the latest concluding in [the need for] a disabled adapted extension. They all state the same level of urgency.”
   3. The landlord had written a short email to the Occupational Therapist rejecting this request, leaving the resident bedbound with no toilet or wash facilities.
4. On 31 July 2019 the landlord provided its stage one complaint response in which it stated that it was not upholding the complaint, because the resident’s request to have an extension built and not seeking suitable alternative accommodation contravened its Aids and Adaptation policy. The remainder of the complaint response largely set out particular sections of this policy.
   1. The A&A policy considers whether the adaptation requested is feasible in terms of committing to the expenditure. The landlord considers if the applicant and their family are likely to maximise the use of the property long term or if other more suitable property is available, either with the existing adaptation in situ or more easily able to be converted for an adaption.
   2. It also considers whether there is suitable accommodation based on the distance to the family/support network and to similar or same amenities, whether a move will adversely affect the person’s support/care package or health condition, and whether the suitable alternative property will be available within a reasonable period e.g. 6 months.
   3. It will also consider whether the applicant’s existing property is not structurally suitable or feasible for the adaptation requested.
   4. If the applicant refuses a reasonable offer of alternative suitable accommodation without good reason, the case will be closed.
5. On 6 August 2019 the resident submitted a complaint escalation request, setting out the following:
   1. The landlord had offered alternative accommodation which was sheltered housing. This was two years prior and was the only offer.
   2. An independent assessor report provided by the landlord to the resident stating that the property offered to the resident at that time was “fit for purpose” was questioned by the Local Government Ombudsman on grounds of authenticity.
   3. In line with the landlord’s own policy, the property offered to the resident was neither suitable or respectful of the fact other medical assessors deemed moving detrimental to the resident mother’s health.
   4. The landlord’s response failed to acknowledge that the mother’s health had further declined and that there was a subsequent increase in urgency for the adaptation works to go ahead. The resident stated that moving the resident was no longer an option.
6. On 15 August 2019 the Essex County Council OT provided an adaptation recommendation to the landlord which included that the resident’s mother have an extension be provided to the property for the installation of a shower room and toilet as well as provision of a ground floor bedroom.
7. On 29 August 2019 the landlord provided final complaint response in which it set out the following:
   1. The enquiry submitted by the Occupational Therapist was not a formal request but rather a general enquiry. Nevertheless, the landlord’s response to the OT in stating that it was not feasible to undertake the adaptation was correct and was in accordance with the landlord’s adopted Aids and Adaptations Policy.
   2. It quoted the Policy stating:

1. “All other adaptation work costing £400 and over is classed as a major adaptation and will only be carried out once a referral has been received from Social Care Services, and a subsequent decision has been made by the Housing Adaptations Review Panel.“
   3. In this particular case, no formal referral had been submitted by the Occupational Therapist specifying what adaptations are required.
   4. It again quoted the Policy stating:

1. “Before committing to expenditure, the landlord will look to place the resident in a property which already has the adaptation required where the specification requires large scale adaptations such as extensions, which will be through liaison with Social Care Services, and include properties that are owned by other Social Housing Providers.
   5. Again, no formal referral had been submitted by the Occupational Therapist specifying what adaptations are required. The receipt of a referral would be a necessary step for it to consider against the other option of finding a suitable alternative property which would likely be available within a reasonable period of 6 months.
   6. Residents have the option to arrange and self-fund the required works if their personal finances allow. Residents would need to seek permission from the landlord’s Housing Services prior to starting any works. Permission would not be unreasonably withheld. It therefore recommended that the resident contact the Occupational Therapist to request that a formal referral be forwarded to the landlord so that both options could be formally considered.

8. Following further correspondence, on 6 November 2019 the landlord wrote to the resident noting that it was unable to carry out the works of providing an extension due to the scope of works that had been sent through from the OT and the budget constraints that it (the landlord) had. A proposed alternative solution of looking into the possibility of Sheltered accommodation for the resident’s mother that was already adapted to her requirements, had been declined by the resident. It suggested that the resident advise the OT of the development and request a further assessment be carried out to propose any alternative measures that could be put in place to assist the resident’s mother’s needs. The landlord contacted the resident’s OT the following day to this end, requesting it consider if there were any alternative measures to the ground floor extension that would suit the resident’s needs. In this email it stated that “As part of the Council’s Aids and Adaptations policy, we do not provide extensions as part of any adaptation works.”
9. Between November 2019 and July 2020 the landlord continued to liaise with the resident and OT in attempting to resolve the complaint:
   1. On 20 November 2019, following the conclusion of the complaint process, the landlord wrote to the resident noting it had contacted the OT who had confirmed there were no other recommendations it could make. It noted that a through floor lift had been considered at some point as part of the adaptation application and review by the landlord, but that due to the property layout a lift was unable to be installed. It offered to source alternative Council accommodation that was already adapted to the relevant specifications. It noted that this may be a long process, and that if the resident did not want it undertaken, she could contact Social Services for further assistance.
   2. On 6 January 2020 the resident wrote to the landlord confirming she was not satisfied with its final complaint response from 29 August 2019. On 24 January 2020 the landlord wrote to the resident noting it was still looking into other possible solutions for the resident.
   3. On 10 March 2020 the landlord wrote to the resident offering two alternative properties to the resident that it considered may be suitable. Between March and May the resident, landlord and OT discussed the possibilities of the resident’s mother or the resident with the mother moving into one of these properties with suitable adaptations, but an assessment was delayed due to the Covid-19 pandemic and negotiations ultimately broke down.
10. Following this the resident wrote to the Housing Ombudsman and requested it investigate the complaint regarding the landlord’s decision to reject the resident’s application for disability adaptations to her property.

Policies and Procedures

11. The landlord’s Aids and Adaptations policy sets out:
    1. Adaptation work costing £400 and over is classed as a major adaptation and will only be carried out once a referral has been received from Social Care Services, and a subsequent decision has been made by the Housing Adaptations Review Panel.
    2. Before committing to expenditure, the landlord will look to place the resident in a property which already has the adaptation required where the specification requires large scale adaptations such as extensions, which will be through liaison with Social Care Services, and include properties that are owned by other Social Housing Providers.
    3. For large scale adaptations, such as extensions, lift shafts and other structural conversion works, an already adapted property will be sought through liaison with Social Care Services, including properties owned by other social housing providers. Only once this avenue has been exhausted consideration will be given to adapting the tenant’s property (subject to property suitability).
    4. If the tenant’s property is not deemed suitable for an adaptation, the adaptation will be declined. Reasons for refusal include layout, location and future lettability should the adaptation go ahead.
    5. Where large structural conversion works are required, providing an already suitable adapted alternative has not been found with other providers, the tenant will be offered a property suitable for minor conversion amongst the Councils stock in the Borough. In such cases, the tenant will be treated as a high priority to ensure that the person is able to move into the alternative property as soon as practicable.
    6. Where alternative accommodation is being considered, the likely impact of moving to a new house should be assessed in relation to the customer’s health/condition and individual circumstances to ensure that it will not have a serious adverse effect upon them.
    7. If the applicant refuses a reasonable offer of alternative suitable accommodation without good reason, the case will be closed.
12. The Aids and Adaptations application processing guidance checklist notes that if a request for major works between £400 but under £15,000 includes any of a level access shower, stair lift, heating conversion or through floor lift, the landlord must consider the below factors before committing to the expenditure:
    1. Is the adaptation requested feasible in terms of:
    2. Building layout
    3. Structural
    4. Planning
    5. Health and safety regulations
    6. If not, then the request will have to be refused but support will be provided to the tenant in finding them suitable alternative accommodation either with the required adaptation already in situ or a property that was more suitable for the required adaptations to meet the applicant’s needs via the landlord’s transfer register.
    7. The landlord will consider whether there is suitable accommodation within the local vicinity or near to family/support network and near to similar or the same amenities. It will consider whether the move will adversely affect the person’s support/care package, health condition, and whether a suitable alternative property is likely to be available within a reasonable period e.g. 6 months.
13. The landlord has a two-stage complaint process:
    1. A complaint should be raised within six months after the individual first becomes aware of the issue they want to complaint about. At stage one a meaningful and informed investigation will be carried out with a response sent within ten working days. It is not appropriate for an officer named in the complaint to respond to the complaint.
    2. A stage two review can be requested within ten working days of receiving the stage one response. A senior manager who was not involved in the original complaint will consider the continuing concerns and whether the stage one resolution process was undertaken fairly and that the conclusions reached were reasonable. The response should be provided within fifteen working days.
14. The landlord’s complaints policy sets out that, at the review stage/stage two:
    “The Senior Manager will not reinvestigate the complaint but will focus on understanding the continuing concerns and whether the Stage 1 Resolution process was undertaken fairly and that the conclusions reached were reasonable.”

Assessment and findings

15. The Housing Ombudsman’s jurisdiction allows us to consider how the landlord handled the original request by the resident’s resident for the proposed adaptation. It can therefore take a view as to whether the landlord’s refusal to undertake the adaptation works to the property was reasonable.
16. The landlord has relied upon its Aids and Adaptations policy in responding to the original request and complaint raised by the resident. In its complaint response, it noted that the policy requires a referral to be made by Social Care Services to trigger the assessment of the application. There was some dispute as to whether the contact from the occupational therapist had actually constituted a formal referral, and the landlord’s complaint responses requested that the resident engage with this process noting that it would carry out the formal assessment of the application on this basis. Nevertheless, the complaint responses and communication with the resident and occupational therapist following the stage two response indicate that the assessment by the landlord did go ahead.
17. The landlord adhered to each of the relevant elements of its policy in assessing the application. It considered the cost of the proposed works, which would be significant as they require the provision of an extension to the property which would likely go well beyond the £400 policy threshold to trigger an assessment of whether they are feasible. At some point the possibility of a lift was also considered, though upon further assessment both the landlord and OT agreed that such work would not be feasible based on the structural layout of the property. The landlord set out its position in the 6 November 2019 communication with the resident that budget constraints would prevent it from undertaking the work based on the scope of the necessary works outlined to it by the OT. The consideration of costs is a reasonable factor to take into account for a landlord in responding to such an application for adaptations given it has obligations to various residents which it must budget for, and the landlord has demonstrated that it has given due consideration to this in making its decision while maintaining the position over the course of its communications with the resident.
18. A key part of the landlord’s policy for responding to applications for works such as those in this complaint requires it to consider whether there were other alternative properties with adequate adaptations as required by the resident. Alternatively, it should consider properties where such adaptations could more easily be made, and if these would be available within a reasonable period. In offering the two properties to the resident following the final response, the landlord demonstrated that it considered these to be appropriate for the resident’s needs. Therefore, in making these offers of accommodation it was acting in accordance with its policy. It also noted that it had previously offered to look into the possibility of sheltered accommodation for the resident, but that this offer had been declined. While the resident has expressed the position that the adaptations on the original property are necessary considering the condition of the resident, the landlord has nevertheless complied with its policy by attempting to meet the needs of the resident in an alternative property.
19. The landlord has recognised the issues faced by the resident and attempted to find alternative solutions to those proposed by the resident and her mother’s OT. It has explained its rationale for rejecting the resident’s application, but also noted it was open to alternative possibilities proposed by the OT if the resident sought further consideration from them. It then contacted the OT itself to explain why it was unable to implement the solution proposed by the latter, and requested it provide alternative options, ensure that the mother’s assessment was up to date and attempted to arrange an assessment of an alternative property that was being offered to the resident. By engaging with the OT directly and repeatedly over the course of a number of months in relation to both the resident’s mother’s needs and the suitability of two separate properties, it has demonstrated a willingness to seek an alternative solution for the resident’s application and complaint.
20. As a final resort, the landlord also conveyed to the resident and her mother that if they were unwilling to move properties, they could contact the Social Services department for further assistance. As part of its final communication on the issue, it indicated that it was willing to continue engaging with the issue in future should the resident’s position change. At each stage of the complaint process and subsequent communication the landlord has taken a similar approach, demonstrating a willingness to find a solution that would work for all parties, even as it maintained its initial position that it could not undertake the work as initially requested on the original property.
21. The landlord stated in later communication that it has a blanket policy of rejecting applications for extensions as part of any adaptation works. This is not in line with its policy and also contradicts the position set out in its earlier responses to the resident. The landlord should review this communication in line with its policy to ensure that such incorrect information is not conveyed to residents in future.

Determination (decision)

22. In accordance with paragraph 54 of the Housing Ombudsman, there was no maladministration by the landlord in respect of the complaint.

Reasons

23. The landlord adhered closely to its policy in assessing and ultimately rejecting the adaptation application by the resident on the grounds of the cost and also possibility that other properties could be utilised by the resident. While the resident was clearly unsatisfied with the result of the application, the landlord engaged with her and the OT in considering a range of alternative solutions for the issue and demonstrated an openness to finding a solution that would work for all parties. Though negotiations ultimately broke down, the landlord has demonstrated that its response to the original request through the complaint process was justified on the basis of its policy and worked in good faith to find alternative options for the resident.