Wealden District Council (202120942)

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REPORT

COMPLAINT 202120942

Wealden District Council

10 October 2023 (amended at review 2 February 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 response to the resident’s request for a fence so he can have a guide dog.

Background and summary of events

The resident has a secure tenancy and has occupied the property, a two bedroom house, since February 2015. He is visually impaired.

Legislation, policies and procedures

The landlord’s Fencing Plan sets its obligations and that of the resident’s for the maintenance, repair and renewal of fencing and boundaries. It says, “there is no statutory requirement for the [landlord] to provide a fence at the boundary of a property or to securely fence gardens to keep pets, animals, children or persons in or out of gardens.”
It says, “Tenants who wish to install their own fencing must first request permission from their Housing Officer.” In terms of disability adaptations, the Fencing Plan says, “Facilitating access to and from gardens, or making access safe, for a disabled occupant is one of the eligible works under the Disability Facilities Grant. This could include fencing works and would be carried out subject to an assessment from an occupational therapist and determination of grant eligibility conditions”.
The landlord’s Aids and Adaptations Policy sets out when it will make minor and major adaptations. It also says, “Under the Housing Grants, Construction and Regeneration Act 1996 (as amended), all owner occupies and tenants, including council and registered provider tenants, are eligible to apply for a disabled facilities grant (DFG) to assist in undertaking major adaptations to their home.”
The Aids and Adaptations Policy says, “A person is defined as “disabled” under the Housing Grants, Construction and Regeneration Act 1996 (as amended), and shall be used for the purposes of this policy, if their sight, hearing or speech is substantially impaired”.
In terms of eligibility for a DFG, the Aids and Adaptations Policy says, for the purposes of this Policy applicants for adaptations must be a tenant of the landlord and be permanently resident at the property at which the aids and/or adaptions are sort, occupying it as their main residence, and have a disability as defined within its policy.
For minor adaptations of up to £1,000, the Aids and Adaptations Policy says an occupational therapy assessment is not a requirement, but may be requested if required. For major adaptations, over £1,000 in value, the landlord requires all applications for major adaptations, including those to its own homes to go through the formal mandatory Disabled Facilities Grant process as defined by the Housing Grants, Construction and Regeneration Act 1996 (as amended). It says a DFG is available for the following purposes:
1. facilitating access by the disabled occupant to and from the dwelling (including reasonable access to the garden).
2. making the dwelling safe for the disabled person and other occupants.
3. facilitating access by the disabled occupant to a room used or usable as the principal family room.
4. facilitating access by the disabled occupant to, or providing for the disabled occupant, a room used or usable for sleeping.
5. facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a lavatory, or facilitating the use by the disabled occupant of such a facility.
6. facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a bath or shower (or both), or facilitating the use by the disabled occupant of such a facility.
7. facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a wash hand basin, or facilitating the use by the disabled occupant of such a facility.
8. facilitating the preparation and cooking of food by the disabled occupant.
9. improving any heating system in the dwelling to meet the needs of the disabled occupant or, if there is no existing heating system or any such system is unsuitable for use by the disabled occupant, providing a heating system suitable to meet their needs.
10. facilitating the use by the disabled occupant of a source of power, light or heat by altering the position of one or more means of access to or control of that source or by providing additional means of control.
11. facilitating access and movement by the disabled occupant around the dwelling in order to enable them to care for a person who is normally resident there and is in need of such care.
It goes on to say that in accordance with the legislation any adaptations must be necessary and appropriate as recommended by the Occupational Therapy Service. In addition, they must also be reasonable and practical as determined by the [landlord]. An Occupational Therapist must undertake an assessment and make a professional recommendation of works that are considered necessary and appropriate to fulfil any unmet need the disabled person may have.
The Aids and Adaptions Policy also says the landlord has to give permission for adaptations. In determining whether to give permission consideration can be given to:
1. If alternative suitable accommodation is likely to become available within 12 months that would meet the applicant’s needs.
2. If the adaptation will have an impact on the property and its future use.
3. If the tenant is in breach of their tenancy agreement and action has been commenced to seek possession or take legal action.
4. If the works are in communal areas whether they would cause a health and safety issue for other residents.
Under the Housing Grants, Construction and Regeneration Act 1996, section 19, it says in respect of disability grants, a local housing authority shall not entertain an application for a grant unless they are satisfied (b) that the applicant is a tenant (alone or jointly with others), (i) in the case of an application in respect of works to a dwelling, of the dwelling.
The landlord’s Complaints Procedure says that when a complaint is made, it aims to respond to the complaint within 15 working days of receipt of the complaint where this practical. It then says, “When we respond, we will advise you of what we have taken into account in reaching our decision; our decision and the reasons for it; if any action is needed; if any changes to our processes and / or procedures are required; a clear statement about whether we are able to resolve your complaint; and details about how to make a stage 2 complaint should you remain dissatisfied with the outcome or with how we have conducted our investigation.” A resident can ask that the complaint go to stage two within three months of the stage one response being received, and the landlord will aim to respond to that, within 15 working days from receipt. It says that response times are flexible.
The Equality Act 2010, section 36 addresses the matter of reasonable adjustments in let properties. It says (1) A duty to make reasonable adjustments applies to:

(a) a controller of let premises;

(b) a controller of premises to let;

(d) a responsible person in relation to common parts.

The Equality Act 2010 at Schedule four, sets out the duty in relation to let premises. It says at paragraph eight that it would not be reasonable to have to take a step which would involve the removal or alteration of a physical feature. At paragraph nine it explains:

(9) Physical features do not include furniture, furnishings, materials, equipment or other chattels in or on the premises; and none of the following is an alteration of a physical feature—

(a) the replacement or provision of a sign or notice;

(b) the replacement of a tap or door handle;

(d) changes to the colour of a wall, door or any other surface.

Summary of events

On 27 April 2021, the resident emailed the landlord and asked whether it would agree to erect a fence at the rear of the garden.
On 5 May 2021, the landlord sent an email to the resident, in response to his enquiry and noted he was hoping to get a guide dog. The email said, it did not own the boundary so was not responsible for putting up a fence. It also referred to having considered funding by way of a Disability Facility Grant (DFG); however, this was rejected as the criteria was not met. It went on to say that if the resident wanted to erect a fence within the boundary, it could send him permission forms to complete.
An email was sent to the landlord from a third party organisation, the resident had consulted with for support, on 6 May 2021. It referred to inaccuracies in its response to the resident. It said a guide dog would allow the resident to be independent and the Equalities Act 2010 “ensures that disabled people are treated equally and with dignity”. By stopping the resident from having a guide dog due to the garden being in its current state, it was disabling him further. It also said a guide dog would go through about 18 months of training before being given to the handler, so took issue with it being referred to as a puppy, in earlier correspondence. It said it was concerned it had not taken the request seriously.
The same day (6 May 2021), the resident complained to the landlord. He said:
1. The Tenants’ Charter said all tenants had the right to feel safe and secure in their home. This was not achieved if there was not some sort of barrier between the properties.
2. When the neighbouring property was sold, the landlord could have erected a barrier between the properties at that point. He said it was for the landlord to speak with the neighbouring property about the fence, and to also ask them to trim the trees on the boundary.
3. The landlord had a duty of care to make him feel safe and secure in his home and because it was failing to do this, it ought to erect a fence between the two properties as a matter of urgency.
4. He was not getting a puppy. It would be at least 18 months old if he got one. However, he would not be allowed one with the garden not being secure, so its actions were preventing him from being independent.
5. In terms of a grant, it would not be benefitting the dog; rather, it would be for his benefit. He said that by referring to it being for the benefit of the dog, the landlord was using discriminatory language.
The landlord wrote to the resident on 17 May 2021, referring to the complaint which it had received on 14 May. It referred him to the Complaints Procedure and said it would provide a full reply within fifteen working days of receipt, which would be 4 June 2021.
The landlord wrote to the resident on 21 May 2021 acknowledging the complaint and in its stage one response, it said:
1. Point 2 in the Fencing Plan explained no work would be carried out on shared boundaries until it was established that it had a responsibility for that boundary. After consideration, it was clear it was not responsible. It apologised if that was not made clear.
2. It received money when a property was sold through Right to Buy; however, there were restrictions on how money could be spent, and paying for a fence where the responsibility lay with an adjoining landowner would not be a correct use of money.
3. Point 8 in the Fencing Plan made reference to Disability Adaptions, but the person who responded previously did not make the decision in respect of grant applications.
4. Whether a fence could be provided by way of a Disability Facility Grant, was discussed with colleagues, and that decision was then relayed to the resident. The landlord attached a link to the guidance used. It said “In the opinion of the officer who processes these applications, providing a fence to ensure a garden is secure for a guide dog does not meet the above criteria. I have asked for a review of this to ensure the correct outcome was reached and have been assured that you do not qualify.”
5. Point 9 in the Fencing Plan referred to special circumstances which were considered, but taking in to account all points, the request did not fall within the remit of Disability Facility Grant. In particular, the Fencing Plan said there was no statutory requirement for it to provide a fence at the boundary of a property or to securely fence gardens to keep pets, animals, children or persons in or out of gardens.
6. It apologised that the guide dog had been referred to in correspondence, as a puppy, but it felt the request had been taken seriously. It said the wording of an earlier email may have been “clumsy”, but it was not in its opinion, discriminatory.
7. The complaint was not upheld, and it said the neighbour would be asked to trim the trees and whether they would reinstate the boundary; however, it had no powers to enforce that. It suggested the resident speak with the neighbour.
On 10 August 2021, the resident’s legal representative wrote to the landlord about his request. It said:
1. It noted the boundary was the responsibility of the neighbouring property and it said the resident did not feel comfortable asking the neighbour about installing a fence, so asked the landlord to do that. In addition, it asked if the landlord could also mention that some plants were overhanging from the garden.
2. The resident had experienced discriminatory attitudes and language from the landlord and that it had not fully investigated the matter. It said it failed to see how a provision of a fence to enable the resident to have a guide dog, did not meet the criteria for a DFG; in particular, as it would make it easier for him to get in and out of the home and the garden, and would make the home safe.
3. Section 29 (c) of the Equality Act 2010 stated a service provider must not discriminate against a person by subjecting them to any other detriment. It suggested that the resident would suffer a detriment if he could not have a guide dog as a direct result of a decision by the landlord not to provide a fence. If the neighbouring property would not engage or put up a fence, it said alternatives ought to be discussed with the resident.
The landlord wrote to the resident’s legal representative, on 12 August 2021, acknowledging he wanted to escalate the complaint to stage two. It said its aim was to provide a full reply within 20 working days of receipt however, it was experiencing a large volume of contact across its departments and therefore there may be a delay in responding. Should it be necessary to extend the timeframe, it would let them know.
On 16 August 2021, the landlord wrote to the resident’s legal representative. It referred to an email received on 12 August, asking for the complaint to be considered under stage two of its Complaints Procedure. It said:
1. The issues complained of at stage one, were satisfactorily investigated. However, additional points had been raised, in relation to the DFG process and why the resident did not qualify for a DFG for a fence.
2. It had considered the Housing Grants, Construction and Regeneration Act 1996 and the Home Adaptations for Disabled People – A detailed guide to related legislation, guidance and good practice. It said there was no specific reference of an adaptation being undertaken for the purposes of keeping a guide dog safe in a garden. Instead, the focus was on the needs of the disabled person. It was a matter of liaising with Adult Social Care (ASC) to decide if adaptations were needed and necessary and a grant awarded. No referral from either ASC or the Sensory Impairment Team had been received.
3. Mandatory DFG could only be given for specific purposes which were outlined in the Housing Grants, Construction and Regeneration Act 1996. The guidance referred under section 23 (1) (a) – Facilitating Access and Provision to access to the garden; “facilitating access to and from the garden and making that access safe. In considering applications for a grant towards such works, the presumption should be that the occupant should have reasonable access into his home, garden and to the main habitable rooms within the home.” A Sensory Impairment Team assessment found there was no unmet need identified for the resident, and the adaptation works being requested were not eligible for mandatory DFG.
4. The guidance under section 23 (1) (b) – Making a dwelling or building safe says consideration should be given for certain adaptations to the dwelling or building to make it safe for the disabled person and other persons living with them.
5. It had considered applications to replace fencing before, but this was usually to help protect children from escaping a garden. It said the safety aspect related to reducing the risk of a disabled person injuring themselves or them causing damage to the property and it did not seem to extend to the provision of safe fencing for a guide dog. Although access to Garden was added to the list of purposes for which a mandatory DFG could be given.
6. Guidance made provision for disabled people to have safe access to the garden, but not providing a secure garden. However, there was flexibility for authorities to provide mandatory grants to meet the adaptation needs of disabled people whose needs are less obvious, such as those with sight or hearing impairment.
7. All these provisions related to the physical needs of the individual disabled person and did not extend to the provision of secure fencing in a garden to allow a guide dog.
8. The Fencing Plan 2018, paragraph 9, had been considered in the stage one response and it related to the type of fencing installed as opposed to whether or not fencing was installed where it was not the landlord’s responsibility.
The landlord concluded by saying, that the fence was the responsibility of the neighbouring property. The resident had been given consent to arrange installation of a fence along the boundary that met his requirements; although, it had no powers to enforce this.
The landlord wrote to the resident on 24 August 2021, and said it had written to the occupiers of the neighbouring property, regarding erecting a boundary fence and cutting back the bushes that were overhanging into his garden. It enclosed a copy of the letter sent.
On 21 September 2021, the resident’s legal representative wrote to the landlord. It referred to the landlord not assisting the resident with the installation of a fence. It said a guide dog was needed to meet the needs of visually impaired person, and this point had not been addressed and its view was “incredibly narrow and indirectly discriminatory”.
On 5 October 2021, the landlord sent an acknowledgement letter to the resident’s legal representative, referring to its letter dated 21 September 2021. It said the resident had already exhausted stage two of its Complaints Procedure, and although a request had been made for a response by 30 September, it needed more time. It would aim to reply by 13 October.
An internal email sent between landlord’s staff on 13 October 2021, said amongst other things, that having taken advice, it was “never a requirement on the landlord to undertake a step which would involve the removal or alteration of a physical feature.” It was not able to unreasonably withhold permission, which it noted it had not, as it had said the resident could arrange for the work to be done himself. It went on to day, “Discrimination is about being unfairly disadvantaged compared to non-disabled people. We don’t undertake fencing work for children and dogs in general circumstances to ensure gardens are secure so [resident] is not being unfairly disadvantaged in comparison.”
On 14 October 2021, the landlord wrote to the resident’s legal representative and confirmed the Complaints Procedure had been exhausted. It said that in terms of placing barriers in front of the resident and failing in its duty to comply with its obligations under the Equality Act 2010, it had given the resident’s disability due regard throughout this matter. It said the boundary belonged to a third party and it did not have the power to compel an individual to erect a fence suitable for the resident’s needs and it repeated the contents of its 13 October email.
On 30 November 2021, an email was sent to the landlord from a third party organisation, the resident had consulted with for support. It asked for an assessment to be done, of the resident’s needs, as having a fence erected in the front garden would mean a guide dog would have a secure area available to it. It also said parking on the road would be difficult with a dog.
The landlord responded on 9 December, and said it was not required to provide any adaptations and this issue had already been considered as a complaint. It said, the DFG only had regard to unmet needs of the physical requirements of the disabled person and this had been explained to the resident. It said the resident had permission to erect a fence himself, but it was not liable to provide the fence. In terms of the driveway a reassessment was being made with regard to the physical needs & driveway of the occupants.
The resident’s legal representative, emailed the landlord on 10 January 2022. It said the third party organisation that had written on behalf of the resident previously, was referring to the front garden being fenced; whereas, its letter related to the rear garden. It wanted to check the status of the requests.
On 21 January 2022, the landlord emailed the resident’s legal representative. It explained, adaptations eligible for funding through DFGs were set out in the Housing, Construction and Regeneration Act 1996. That the resident had been advised that works to secure the property for the purposes of a guide dog did not fall within the mandatory criteria for grant funding. It had no duty to fund and undertake the requested fencing works to provide a secure environment for the proposed guide dog, irrespective of whether this was for the front or rear garden. It said, in accordance with its duty under the Equality Act 2010, it would not unreasonably withhold permission for the resident to undertake the work himself should he submit a request to his housing officer. Although, consideration would have to be given to the impact that a fenced front garden would create in the locality and whether this would contravene any planning or covenant conditions.

Assessment and findings

Resident’s request for a fence.

The evidence shows the landlord did consider the resident’s request. It did not object to the resident erecting a fence at the property; however, it said it would not carry out that work because it was not responsible for the boundary where a fence was needed. It contacted the occupier of the neighbouring property, having been asked to do so by the resident, in order to ask about having a fence erected. This was reasonable in the circumstances; however, it seems no agreement was reached.
The landlord’s Fencing Plan does say there is no statutory requirement to provide a fence at the boundary of a property or to securely fence gardens to keep pets, animals, children or persons in or out of gardens. It is accepted the landlord was not responsible for the boundary where the resident wanted a fence erected, so was not obliged to erect or pay for a fence, just because one was requested. However, the landlord does have an obligation, to make reasonable adjustments for a disabled resident, in order that they can use their services/property. What is reasonable, will depend upon the particular circumstances relating to each individual case.
It is not the role of the Ombudsman, to decide whether the landlord should have made reasonable adjustments for the resident, or if required, to determine what those should have been. It is to consider whether the landlord took reasonable steps to consider the request made by the resident; in this case, to have a fence erected at the property, in order that he could have a guide dog.
A guide dog is a specially trained assistance dog that aids blind or visually impaired people to be more independent. Being visually impaired, a guide dog could assist the resident in going to and from the property, as well as helping him navigate within the property. In order to be able to have a guide dog, the resident explained there needed to be a secure outside space for the dog.
The landlord has referred in correspondence (internal email 13 October 2021) to not doing the “fencing work for children and dogs in general circumstances to ensure gardens are secure so [resident] is not being unfairly disadvantaged in comparison.” However, this was not a general request to pay for fencing to keep a pet dog. The landlord was being asked to consider the resident’s case on an individual basis.
To take in to account that the resident has a disability, and in order to help him go to and from his property as well as around the property, he said he would benefit from a guide dog. Without a guide dog, it may have meant he could not continue to be independent in his home. Therefore, he was seeking an adaptation to the property, by way of a fence being erected to keep the guide dog on the property, as a reasonable adjustment.
The landlord’s Aids and Adaptions policy, makes it clear that the resident was eligible Under the Housing Grants, Construction and Regeneration Act 1996, to apply for a DFG to assist in undertaking adaptations to the property. However, the landlord’s response to the request was that, having discussed the matter with colleagues, he did not qualify for a DFG because providing a fence to ensure a garden is secure for a guide dog does not meet the criteria.
At review stage of the Ombudsman’s procedure, the landlord confirmed that in coming to a decision about whether the resident qualified for DFG funding, findings from the Occupational Therapist were given due consideration, as well as an assessment from the Sensory Impairment Team. It has said it also had discussions with Foundations, the National body for DFG and Home Improvement Agencies. The landlord said that as an outcome, the Occupational Therapist and the Sensory Impairment Team stated that there was ‘no unmet need’ and that whilst a guide dog would be beneficial for the resident to access the wider community, it was not required for them to be independent around their home; and thus did not fall within the mandatory DFG criteria.
The criteria, as listed by the landlord in its Aids and Adaptions Policy, says a DFG is available for facilitating access by the disabled occupant to and from the dwelling, as well as accessing rooms within the property, and the garden. As such, the evidence provided at review stage shows the landlord consulted the relevant parties as part of the formal DFG assessment process. As a result, the landlord was able to confirm that the resident’s request would not qualify for funding via the DFG.
It is noted that the resident feels the landlord demonstrated discriminatory attitudes.. It is therefore understood why the resident did not feel that the landlord had given full consideration to his request and circumstances. However, the evidence provided by the landlord shows it did consider the resident’s individual circumstances and needs, and considered the assessments of the relevant professionals in coming to its decision. As such, the landlord’s actions in assessing whether the resident qualified for funding via the DFG were appropriate.
Overall, there is no evidence the landlord maladministered in its response to the resident’s request for a fence so he can have a guide dog.
However, the Ombudsman notes that although the landlord provided evidence to demonstrate it had consulted the relevant parties and obtained their professional views, it was not able to provide notes or minutes for the multi-disciplinary meeting it said was conducted.
In its review request of 31 October 2023, the landlord told the Ombudsman that in providing evidence to support its assertion it had conducted a formal DFG process assessment, that much of the determination of need, and thus eligibly, took place at multi-disciplinary forums, and as such it could not provide written evidence of those meetings.
Good knowledge and information management (KIM) is crucial to any organisation’s ability to perform and achieve its mission. Without good KIM, a landlord could be severely hamstrung in delivering its core purpose efficiently and effectively, as well as prevented from demonstrated it has followed the relevant policies and guidelines when making its decisions.
The importance of good KIM has been detailed in the Ombudsman’s recent Spotlight report on the topic, which can be accessed here: KIM-report-v2-100523.pdf (housing-ombudsman.org.uk).
The landlord did not provide any further explanation of why meeting notes or minutes are not recorded either by itself, or by a meeting secretary whose role is to make a record of proceedings and provide these to the parties to the meeting; or why records are not retained within its system.
There is unlikely to be a good reason for why these details are not recorded and retained by the landlord. The landlord has an obligation to ensure it keeps proper records, both in order to satisfy itself that it has followed its own processes and procedures and also to ensure it creates a proper audit trail so that it can fulfil its obligations as a member of the Ombudsman’s Scheme. Paragraph 10(b) of the Scheme makes clear that members are obligated to provide copies (without charge) of any information requested by the Ombudsman that is, in the Ombudsman’s opinion, relevant to the complaint.
It is acknowledged the landlord’s failure in this case is unlikely to have impacted the resident, as the evidence suggests the landlord did consult the appropriate parties to establish if the DFG application was valid. However, this may not be the case in future cases of a similar nature, and for which these records being provided by the landlord would allow the Ombudsman to make an accurate determination.
As the landlord’s failure relates to its obligations as a member of the Scheme; as opposed to one that would have impacted the resident as part of the landlord’s actions in assessing their application for a fence; no determination will be made in relation to their complaint specifically.
However, the landlord is recommended to review its process for making and retaining records of multi-disciplinary meetings. In doing this, it should consider the Ombudsman’s recent report on knowledge and information management (link available above) and should consider amending its policies and processes to ensure it is working within the standards expected.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s response to the resident’s request for a fence so he can have a guide dog.

Reasons

The landlord adequately considered the resident’s application to have a fence erected, in order to be able to have a guide dog.

Recommendation

The landlord is recommended to review its process for making and retaining records of multi-disciplinary meetings. In doing this, it should consider the Ombudsman’s recent report on knowledge and information management (link available above) and should consider amending its policies and processes to ensure it is working within the standards expected.