Clarion Housing Association Limited (202102182)

REPORT

COMPLAINT 202102182

Clarion Housing Association Limited

11 November 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

The complaint is about the resident’s concerns that that the landlord has withheld consent for adaptations works to be carried out.

Background and summary of events

The resident is an assured tenant of the landlord. His property is a house. In January 2018, the landlord carried out a joint visit with a local authority surveyor and Occupational Therapist (OT) working for the local authority, in respect of a recommendation for the construction of an extension to accommodate the resident’s medical equipment and needs. The landlord has stated that its surveyor asked the OT for documents but it was not until 3 August 2020, that it next received contact about the works.
On 3 August 2020, the Occupational Therapy service advised the landlord that it would provide the resident with Disabled Facilities Grant (DFG) funding for major adaptations but that the resident’s daughter would be project-managing the works. The Occupational Therapy service advised that it would send permissions and other documents when the plans had been drawn up.
On 7 December 2020 the resident’s daughter advised that the size of the funding had been extended and she was still finalising selecting the contractor for the works.
On 29 December 2020 the landlord’s Aids and Adaptations Team received a drawing of the proposed plan and a copy of planning permission approval. The documents were passed to a surveyor to assess the feasibility of the works. Internal correspondence between 29 December 2020 and 22 January 2021 noted that it could not inspect at that time due to Covid-19 lockdown and the daughter would further need to provide:
1. Full scope of works being carried out, with detailed risk assessments.
2. A full detailed architect’s drawing as the drawings provided were inadequate.
3. Floors plans for the property, as there was no asbestos survey in place.
4. The OT assessment.
On 27, 28 and 29 January 2021 the landlord confirmed to the daughter that it had obtained plans of work and the layout of the property from the Planning Portal but was waiting for other documents. The landlord asked for the OT’s details so it could be sent the official OT recommendation referral. The OT sent it a letter on 29 January 2021.
On 9 February 2021 the daughter advised that her builder had provided a quote that was over budget as he would have to had dig the extension by hand as there was no access for a digger. She asked therefore for a side gate to be fitted. The landlord sent the request to its surveyor to assess as this was in addition to the OT referral.
On 11 February 2021 the landlord advised the Occupational Therapy service that it needed the full assessment and asked that it confirm the DFG funding in writing.
The landlord has stated that it emailed the resident’s daughter again on 2 March 2021 to remind her that the layout plans of the property did not contain enough information.
On 12 April 2021 after the daughter advised she could not obtain architect plans for the work, the landlord explained that whilst she had provided drawings, as the works were extensive, it would require architectural plans and sketches of the proposed works, alongside risk assessments and a schedule of works, specifically from an architect. Also on 12 April 2021, the landlord also chased up the local authority for confirmation of the DFG funding.
The landlord also informed the resident’s Councillor that it needed full detailed architectural drawings and a schedule of works from a professional architect which would usually confirm planning application approval, building regulations approval, tendering documents and would advise of a principal designer under Construction, Design, Management (CDM) 2015 regulations. It also explained that it need a fully detailed schedule of works including all risk assessments, prior to any works being approved and commencing, as it would with any tenant requesting permission for such a large adaptation to their property.
On 23 April 2021 the landlord advised the Councillor that it had reiterated to the Occupational Therapy service what information it needed to assess and approve the works. This was:
1. Full scope of works due to be carried out, alongside detailed risk assessments.
2. Full architects plans and sketches of the proposed works.
3. Floor plans of the existing layout and proposed layout from the architects.
4. Confirmation of the contractors who would be carrying out works.
On 20 May 2021, the landlord sent the Stage 1 response to the complaint.
1. It noted the OT was now assisting the resident’s daughter in managing the works and its Aids and Adaptations Team had clarified exactly what it required in order to fully assess any major adaptations. It was unable to provide a timeframe for making a decision on the proposed works, until such a time when the relevant paperwork and documentation had been provided.
2. It had confirmed to the resident’s daughter the information it required:
  1. A full scope of proposed works.
  2. Detailed risk assessments.
  3. Full architectural plans and sketches of the proposed works.
  4. Floor plans of the existing layout and proposed layout from the architects.
  5. Confirmation of the contractors who would be carrying out works.
3. As the resident’s request for the removal of bushes and fencing and the installation of a new garden gate was not mentioned within the OT recommendations, it would not carry out the works.
4. The current surveyor had been referred the case by the Aids and Adaptations Team in December 2020. He presumed delaying the inspection would not pose a serious risk and was unaware there had been an extension request prior to the referral. It therefore accepted that there had been a breakdown of communication within internal teams. It offered £50 compensation in recognition of a “lack of information / failure to meet service standards”.
On 3 June 2021 this Service advised the landlord that the resident was unhappy with the Stage 1 response as he was unhappy with the length of time issues had been ongoing. On 15 June 2021, the landlord acknowledged the resident’s stage 2 request.
On 2 July 2021 the landlord sent the Stage 2 response to the complaint. It noted:
1. It was not responsible for adapting the resident’s property or funding the works; the local authority was.
2. As there had been changes to the initial design, it needed to see complete and comprehensive drawings of the adaption’s new design and related documents in order to provide consent prior to the extension being built. It had made numerous requests for this information, however, it had yet to be provided by the resident or his daughter.
3. It needed the new design to have full awareness of the proposed works and the implications for neighbouring properties and future maintenance. In addition, it would need these plans to be able to evidence that the works were completed in line with the planning application and building control as it could be liable for any breaches in the future.
4. As well as the extension, it could not confirm agreement to the addition of a garden gate, which it understood was for builder’s access. Agreement would only be confirmed as part of the permission request as a whole.
5. To progress matters, it would make contact with the local authority and seek to arrange a joint site visit to clarify requirements for all sides. This option would ideally allow an architect to develop the plans needed to progress the works and or identify any other potential solutions. However, the restarting of the whole extension process would be governed by the local authority, it would have to agree to it and it would have to lead it.
6. In conclusion, it was not responsible for the overall delays in completing the extension, as this was not a process that it was directly responsible for nor able to influence. It had correctly followed its policy and procedure and that of the local authority. Therefore, it considered the compensation offered at Stage 1 appropriate.
On 16 July 2021 the OT sent the landlord the architect’s technical drawings for the proposed extension. An internal email dated 20 July 2021 indicated that it considered the plans to be acceptable but before granting consent, it would need to see the contractor’s details including insurances and Risk Assessment Method Statement (RAMS) and it would need to be arrange a site visit to confirm the access arrangements.
On 26 August 2021, the landlord carried out a site visit and found that the proposed extension was not viable having looked at three options. It emailed the Occupational Therapy service, which had refused to attend, stating:
1. As there was no side access to the rear garden, to access the property from the side would require the removal of two fences, one metal railing and the removal of several mature trees. This was further complicated by the fact that one of the fences was not its ownership. This meant it would have to approach the neighbouring property for access, and this could be a lengthy legal process.
2. It could decant the resident so the builder could access the rear of the property through the house, but this was complex due to the resident’s disability.
3. The builder could use a crane to lift materials over the house but, again, this would require a decant, was costly and would require permission.
In emails sent on 3 and 7 September 2021 the resident’s daughter advised that her builder could use the space between the property and the neighbour’s fence once the closest fence, hedge and back fence had been removed. On 9 September 2021 the landlord confirmed its position that the extension was currently “not feasible due to the boundary constraints” but that it would liaise with its legal team to find a solution.
On 21 September 2021, the landlord updated the Councillor stating:
1. Its Lands and Deeds Team was investigating the ownership of the land between the garden of the resident’s home and the neighbouring property.
2. The team was assessing ownership of the fence and hedge that the resident wanted removed so his contractor could access the garden without entering the house. After it could then advise on the feasibility of these additional, specific works.
3. It would also need to get written permission from the neighbours that they were happy for the landlord to remove boundary hedges/fences.
4. It was waiting for the contractor to produce details such as RAMS and insurance documents.
On 23 September 2021 the landlord received legal advice that there would be significant risks to it if it sought permission as it was not carrying out the works. The advice noted:
1. The works may not get completed within the agreed timeframe.
2. The works may be of poor quality.
3. Disagreements may rise particularly if damage was caused to the neighbouring properties when exercising the rights of access. Any claims regarding this would primarily be aimed at the landlord as it was the legal owner of the property.
4. The resident may refuse to pay for the works and/or replacing and removing the hedges.
5. The hedges may be removed/replaced improperly.

The legal advice suggested an agreement between the landlord and the resident and a separate agreement between the landlord /the resident with the neighbour about removal of hedge and access.

On 4 October 2021, the resident’s daughter noted that her builder had now stated there was enough room to gain access just by taking down the landlord’s fence, therefore it would not be necessary to interfere with the hedge or the neighbour’s fence. The landlord internally noted that this changed nothing from a legal point of view as everything to the left of the fence was not in its ownership, therefore the contractor would need to walk across land that it did not own.
On 8 October 2021, the landlord wrote to the resident’s daughter advising of its position was in respect of the extension. It advised:
1. It could not grant access to the neighbour’s land as it was not the owner of it. She would need to obtain a clear written agreement between her and the respective neighbouring properties whose hedges or fences were to be removed and who would be granting access through their land. Thereafter, it could authorise proceeding with the requested works.
2. The agreement with the neighbouring properties whose hedges should be removed should include:
  1. The explicit consent of the neighbouring property to grant access and right of way and agreed timeframe.
  2. The full schedule of works intended and the timeframe.
  3. Who would be responsible for removing and replacing the hedges.
  4. Who would be responsible for making good any damage caused.
  5. Who would be responsible for the legal costs (as it may well be the case that the neighbours may wish to take legal advice before entering into any agreement and may require the resident to cover the same)
3. As the resident’s daughter, not it, was managing the works, she would be responsible for the works and the costs, and for ensuring completion of the works within the completed timeframe. She would also be responsible for reimbursement for any damage caused to the neighbouring properties or to its property and for any non-performance or subsequent claims that may arise.
4. It suggested due to the complications that she reconsider how she proposed to undertake the works or look for an alternative way for the resident to have accommodation that met his needs such as a transfer.
On 11 October 2021, the landlord further clarified to that resident that even if it was only its fence that needed removing, her builder would still need to access land which the land registry plans indicated was owned by the neighbour and who therefore needed to grant access.
On 4 February 2022 the resident advised this Service work was due to start on 18 March 2022.

Assessment and findings

The resident has explained of difficulties with the Occupational Therapy service which delegated responsibility of project managing the works to his daughter. The role of the Housing Ombudsman is to consider formal complaints made about member landlords, which are usually registered providers of social housing. We consider the reasonableness and appropriateness of how a landlord has dealt with a complaint taking account of relevant legal considerations, policies and procedures, good practice and what is fair in all the circumstances. As the local authority Occupational Therapy service is not member landlord of the Housing Ombudsman, we cannot assess their actions in reaching a determination on a complaint.
The landlord first received notification that the resident would be receiving grant funding for major adaptations to his property in August 2020. The responsibility for adapting a home in this way was held by the local authority which identified and funded the works (although in this case it declined to project manage the works). As the landlord is the freeholder of the property it was required to provide permission for the works to be delivered.
In deciding whether to provide permission, as a responsible landlord, it was entitled to make reasonable checks to satisfy itself that the proposed works were feasible, safe and would not cause detriment to the resident or the future use and occupation of the property. This was important given its responsibility for the future maintenance and insurance of the property. However, at the point of being notified about the works in August 2020, it was awaiting relevant documentation.
It was not until 29 December 2020 that the landlord received documentation about the adaptations. However, it made clear to the resident’s family and the Occupational Therapy service that this information was insufficient for its purposes as it required more detailed information about the extension to be built, how the works would be carried out and the assessment by the OT. In doing so, it managed the expectations of the resident and the local authority about the type and level of information that it needed and what they needed to do to gain its permission. The landlord also made clear in its email of 11 February 2021 that the OT service should provide written confirmation of the DFG funding. This was reasonable as together with confirming that the works were technically feasible, it needed to confirm that there was funding for the full completion of the works.
There was a further delay to the commencement of works over the next few months as although the landlord obtained some information from the planning portal, it did not receive the information it required. However, it made explicit on several occasions to the resident and her Councillor what information it required, as can be seem in its correspondence of 2 March 20201, 12 April 2021, 23 April 2021, and complaint responses. It was particularly appropriate that the landlord made clear that it required evidence that works would be compliant with CDM 2015 as these are the current regulations governing the way construction projects of all sizes and types are planned in the UK. As extensions to buildings must meet planning and building control regulations it was also appropriate that the landlord made clear that it needed to protect itself against any breaches of these regulations.
It not until July 2021 that the landlord received the technical drawings. Having done so it was appropriate that the landlord now sought to assure itself that the builder appointed by the resident was capable of carry out these works, in particular seeking to confirm that it was insured, would carry out a risk assessment and could produce a method statement. It is noted that the landlord had the opportunity to ask for the builder’s insurance documents and RAMS before; however, the builder could have proactively provided this information at any point. In any event, it had not yet received all the information it had requested in order to permit the builder to construct the extension.
As the issue of the builder’s access to the property was fundamental to the works, it was also appropriate that the landlord visited on 26 August 2021 to assess the situation before approving the works. After the visit of 26 August 2021, the landlord found that there was no viable way for construction to take place, at that time. Whilst this added to the length of time before commencement of the works, the landlord explained why it considered each of the three options considered were unfeasible in its email to the Occupational Therapy Service. Therefore, it did not act unreasonably.
The fact that there was no side access to the rear garden (which would allow the builder to bring in machinery) proved to be main difficulty for works to commence. The landlord understood that providing side access would entail the removal of boundary hedges and a fence that it did not own as well as the parties needing to access the land of neighbouring private residents. This potentially put the landlord at risk from claims or matters arising out of obtaining and gaining access for the works. It was therefore prudent and reasonable of the landlord to seek legal advice to determine exactly how the process for building the extension could proceed.
The advice provided to the resident’s daughter was consistent with the advice provided, in particular that there should be an agreement between the landlord and the resident and separate agreement between the landlord and the resident with the neighbour about removal of hedge and access. The landlord detailed the points that it wanted the agreements to concern The landlord in doing so made clear to the daughter what she needed to do at that stage for the works to progress and what her responsibilities are. Taken altogether whilst there were cumulative delays in the commencement of the construction of the extension to the resident’s property, the delays were not the consequence of service failures by the landlord.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord.

Reasons

In deciding whether to provide permission, as a responsible landlord, it was entitled to make reasonable checks to satisfy itself that the proposed works were feasible, safe and would not cause detriment to the resident or the future use and occupation of the property. The landlord made clear on several occasions to the resident, the Councillor and the local authority exactly what level of information it needed before it could grant its permission.
With regard to the issue of the resident and the builder wanting the creation of side access to the site, the landlord by inspecting and seeking legal advice took action to determine exactly how the process for building the extension could proceed. The landlord relayed the advice to the resident thereby making clear what she needed to do at that stage for the works to progress and what her responsibilities are. Taken altogether whilst there were cumulative delays in the commencement of the construction of the extension to the resident’s property, the delays were not the consequence of service failures by the landlord.