Bromford Housing Association Limited (202120321)

REPORT

COMPLAINT 202120321

Bromford Housing Association Limited

17 June 2022

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:
   1. The landlord’s request that the residents remove a conservatory.
   2. The landlord’s handling of the resident’s complaint.

Background

2. The residents are tenants of the landlord at the property, a semi-detached house. The tenancy commenced in 2005. The landlord merged with the residents’ previous landlord in 2015 and took on responsibility for the residents’ property at that point.
3. The residents complained to the landlord that it had advised them to remove a conservatory structure on their property. They said the previous landlord had given them permission to erect the structure and that removal of the conservatory would present difficulty to the household, for financial and practicality reasons. They also raised concerns about this issue from a disability perspective.
4. In response to the complaint, the landlord said there was no documentation to confirm that the structure complied with necessary legislation and therefore needed to be removed. It also said the local council had not received a planning application for the structure and it therefore had no option but to require the residents to remove the structure.
5. The residents asked this Service to look into their complaint. They said they had received permission to erect the conservatory from the previous landlord, and it had stood for 12 years without any issues. They said they had utilities in the conservatory due to the size of the kitchen.

Assessment and findings

Landlord’s requirement for the residents to remove the conservatory

6. A surveyor for the landlord initially expressed concerns about potential safety hazards relating to the ‘poorly constructed’ conservatory when they visited the property for a separate matter in August 2021. The surveyor said that a full survey was required. The landlord arranged for a second surveyor to attend to carry out the full survey, but access could not be obtained to the property (the residents had already cancelled the appointment due to a family emergency).
7. Though a full survey had not been carried out, the landlord concluded that the residents needed to remove the conservatory. Internal correspondence written by the landlord said that there was no option of retrospective permission, and that this was based on the substantial information available to it. It was not clear, however, what this supporting information for the landlord’s position consisted of.
8. The previous landlord’s tenancy handbook states that tenants are not to erect any structure without prior written consent. The resident’s stated that they had received consent from the previous landlord, however, there was no evidence of this when the landlord reviewed the records it had been provided with from the previous landlord. The landlord said that records of a previous application had been retained, but no other evidence existed. 
9. The Ombudsman is not in a position to assess the actions that might, or might not, have taken place on this issue by the previous landlord. It is not in dispute that any such application took place a considerable time before the complaint under investigation and that the landlord under investigation here was not in control of the property at that time. The Ombudsman, in such cases, would expect the landlord to conduct as thorough an examination as possible however, and for it to then use the outcome of such an investigation to inform its decision making.
10. In this case, the landlord had clearly reviewed all available records as part of its investigation as it identified the previous request from the residents to have a structure erected. Having identified this evidence, but nothing else, such as approval of the application, or an inspection of the completed structure, it was reasonable for the landlord to proceed on the basis that there was no evidence of permission having been granted for the structure at the time it was constructed. Whilst the residents clearly dispute this position, it is not within the Ombudsman’s authority to make a finding here based on the balance of probability in the way that a court would.
11. Having established that no evidence of consent was in place for the conservatory, the landlord initially made attempts to have the structure surveyed. This was reasonable as, though the initial inspection had stated that the structure was of a ‘poor’ standard, the same operative had stated that a full survey was required. However, this full survey did not take place as the landlord was unable to obtain access at the point that it attempted this survey (2 September 2021), with the resident having cancelled the appointment that same day.
12. Following the failed attempt to survey the structure, the landlord informed the resident (14 September 2021) that it was satisfied based upon the concerns raised during the initial visit, together with the lack of evidence of appropriate authority for the consent, for the resident to be required to remove the structure. The landlord gave the residents three months (until 14 December 2021) to complete this action.
13. There is concern that the landlord’s decision did not adhere to its own Customer Home Improvements and Alterations Policy, which states that that where a customer improvement has been undertaken without permission, a retrospective application must be made. In this case, the landlord did not make reference to the possibility of a retrospective application at any point, neither at the point that it first considered the issue, nor when the residents complained about the landlord requirement for them to remove the structure (15 November 2021).
14. Additionally, when the resident specifically requested that the landlord consider providing retrospective permission (2 December 2021), the landlord confirmed, in internal email correspondence, that there was no option of retrospective permission, though it did not clarify why this was the case. It also refused escalation of the resident’s request to escalate the complaint on the basis that doing so would not change the substantive decision.
15. It is appreciated that the landlord was concerned, from a health and safety perspective, about the structure. It was also reasonable for it to take into account the lack of evidence of formal consent and it having attempted to survey the conservatory. However, there are concerns about whether the process it followed was fair, in all the circumstances of the case. The full survey that the original operative stated would be necessary did not take place; the retrospective application required by its procedure did not take place and when this was questioned by the residents, the landlord refused to escalate the complaint.
16. In addition, the landlord referred to having checked with the Local Authority’s planning team, with no evidence of any permissions having been identified. It is not known whether such permission would be required as the specific nature of the structure that was put in place is not known and, in any case, the Ombudsman does not have the expertise nor authority to determine whether such permission would have been required. Having referred to such a requirement, it would at least be expected for the landlord to clarify how this impacted upon its decision and why it was appropriate to reference this in its response. The residents raised this issue in their escalation request, however, this issue was not responded to because the landlord refused to progress the case to stage two of its complaints process.
17. Of further concern is the fact that the landlord’s decision to not escalate the complaint meant that the additional concerns raised about the removal of the structure were not responded to. The residents letter to the landlord of 17 December 2021 confirmed that three household members had disabilities and that they felt that the landlord was discriminating against them in this respect. In addition, their original complaint had raised concerns from a financial and size related perspective that were never addressed by the landlord.
18. In all the circumstances of the case, therefore, the landlord’s response to the substantive issue amounts to maladministration. The landlord has not provided sufficient evidence to conclude that it adhered to its policy when requiring the residents to remove the structure, and nor has it convinced the Ombudsman that the process it did follow was fair. In the circumstances, it would have been both reasonable and appropriate for the landlord to proceed down the retrospective application route, and if not, to have explained in clear and unambiguous terms, exactly why such an option was not possible.
19. To put this matter right, the landlord has been ordered to progress down the retrospective application route, with the residents expected to play their part in ensuring that any required inspections can proceed in a timely manner. A time period of two months has been allocated to such a process, with both landlord and resident expected to act promptly to ensure that this process can proceed in this limited timeframe.
20. The Ombudsman does not have the authority to require that the landlord make a decision that the structure remain in place, nor that it be removed. Such a decision remains in the decision-making authority of the landlord and the resident will need to manage their own expectations about the end result of this process. There is no reason to doubt that the original inspection that highlighted the concerns about the structure were flawed. This investigation has highlighted concerns from a perspective of fairness, about the landlord’s actions, but this does not mean that its overall decision was inaccurate.
21. Depending on the results of the retrospective application process, the landlord is also recommended to consider the additional issues raised by the residents during the complaint. They raised concerns about the size of the property, their use of the structure that was to be removed and also concerns about the cost of erecting the property and the cost of removing. If the end result of the retrospective application is for the removal of the structure, the landlord will need to work with the residents in order to address their concerns, including any support that it might be able to provide.
22. Given the health and safety elements of the landlord’s concerns, the landlord’s proactive response to these issues is particularly important as it will want to ensure that the structure is removed efficiently and effectively.

Landlord’s handling of complaint

23. The landlord’s complaints policy says that if a resident is not satisfied with its stage one response, they have the right to request their complaint is reviewed at stage two. It also says there may be times when escalation of the complaint may not be accepted. For example, where the only point outstanding is the amount of compensation or where it considers it has already responded to all the points of the complaint and escalation will not change the decision.
24. After the residents received the landlord’s stage one complaint response, they requested the landlord escalate their complaint to stage two. The landlord refused this request, and said that escalation would not be of any benefit as it would not change or alter the decision that had already been made.
25. The landlord’s refusal to escalate the complaint to stage two of its complaints process was not reasonable here. There were several issues raised by the residents (during the initial complaint to the landlord and in their request to escalate their complaint to stage two) which had not been addressed by the landlord in its stage one response. These were:
    1. They had questioned where the landlord expected them to put the white goods in the conservatory that would not fit in the kitchen.
    2. They raised concerns about the financial implications of complying with the landlord’s request.
    3. They had checked building regulations and did not think the structure required planning permission and instead met the conditions and limits under permitted development rules.
    4. They made the landlord aware that three residents in the property had disabilities.
26. The landlord ought to have considered and addressed the above points as part of its complaints process. In addition, its decision to prejudge that any further review of the complaint would not alter its decision on the substantive issue was unfair and amounted to a fettering of its discretion.
27. In all the circumstances of the case, the landlord’s complaints process presents as lacking in customer focus. To reflect the failures identified, an award of compensation has been ordered, in accordance with the Ombudsman’s guidance on remedies for cases involving maladministration.

Determination

28. In accordance with paragraph 54 of the Scheme, there was:
    1. maladministration in respect of the landlord’s request that the residents remove a conservatory; and
    2. maladministration in respect of the landlord’s handling of the complaint.

Orders and Recommendations

Orders

29. The landlord to pay the resident compensation of £250 to reflect the complaints handling failures identified on this case.
30. The landlord to evidence compliance with this order to this Service within 28 days of this report.
31. The landlord and residents to proceed down a retrospective application process in relation to the conservatory. This process is expected to take two months to complete, with both sets of parties expected to play their part in ensuring that the process can complete within this limited timeframe.
32. The landlord to evidence compliance with this order within two months of this report.

Recommendation

33. In the event that the retrospective application process results in a decision that the conservatory requires removal, the landlord to factor in the additional issues raised by the residents in its management of the removal process.