East Devon District Council (202232330)

REPORT

COMPLAINT 202232330

East Devon District Council

7 March 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 resident’s complaint is about the landlords handling of the resident’s requests for:
1. Rehousing.
2. Adaptations following occupational therapist assessments.

Background

The resident holds a flexible tenancy with the landlord which started in May 2020.
The property is a 2 bedroom bungalow. The resident lives in the property with her daughter, her partner, her son and her partner’s daughter. The resident’s daughter has a severe life long disability with a diagnosis of cerebral palsy, epilepsy and severe learning disability. She is also a full time wheelchair user.
When the tenancy began in May 2020, the property was deemed to be suitable for the resident and her daughter who were the only occupants at the time. However, since then the family has grown and the resident’s daughter’s needs have developed. A statement of need was completed on 10 December 2020 which included an occupational therapist (OT) assessment. A recommendation was made for the landlord to carry out major adaptations to the property to accommodate the needs of the resident’s daughter and if this could not be done, it was recommended for the landlord to arrange a move to a purpose built home.
The OT made a number of recommendations which included the following:
1. Storage space for medical equipment.
2. Circulation space within and between rooms which is suitable for a wheelchair user.
3. Access to the bathroom with a wheelchair accessible shower, changing facilities at a suitable carer height and a wash dry toilet to be used with specialist seating.
4. Sufficient accommodation in the rest of the property for the household.

The OT recommended a feasibility visit to assess whether the property could be adapted for the daughter’s needs while providing enough space for the rest of the family.

Internal email trails show the OT chased the landlord for an update on 11 February 2021 following the submission of the statement of need. The landlord responded the same day and confirmed that the property was unlikely to be extended but the landlord was awaiting a final decision.
The OT wrote to the landlord on 16 February 2021 and informed it that the resident would prefer to remain in the same area. They also said the resident would be happy to move into temporary accommodation if needed whilst adaptations were carried out or add their own funds to the overall cost. The resident had suggested using the smaller bedroom to facilitate a loft conversion and create 2 bedrooms and wanted to know whether the landlord thought this was feasible. The landlord responded stating that the property was not suitable to be extended and that it would not consider a roof void conversion.
The resident made a formal complaint on 20 February 2021. She explained that her daughter’s needs had changed and without the necessary adaptations her health and hygiene needs would not be met including the delay of surgery which would be detrimental to her health. The resident said she wanted the landlord to consider adapting the property and she was unhappy that the landlord had not carried out a feasibility visit as recommended. The resident also expressed her concerns about waiting for a suitable property as she felt this would be a long process, during which her daughter’s condition would worsen.
On 12 March 2021 the OT sought permission from the landlord for the following adaptations to assist in meeting bathing and toileting needs temporarily:
1. Ceiling track hoisting in the bathroom.
2. Drop down shower bench to go over the bath. The OT noted that whilst this would not resolve the washing issues, it could be used as a changing table.

The landlord approved the above adaptations.

The landlord issued a stage 1 response on 26 March 2021. In it the landlord acknowledged that the resident’s family had outgrown the bungalow, however, the property could not be adapted due to the following reasons:
1. The landlord had reviewed the plans and drawings for the bungalow and identified the roof pitch as being too shallow to accommodate a loft conversion.
2. It was not possible to remove structural timbers as this would compromise structural integrity of the roof.
3. A staircase would be required to access the loft conversion and there was no space for this.

The landlord also said that the statement of need was not a guarantee that the requested adaptations would be carried out and the landlord’s role was to assess the suitability of the property.

The landlord responded to each of the OT’s recommendations and noted that the first 5 recommendations were met by the property if the resident’s daughter occupied the larger bedroom. The landlord noted that it was not achievable to provide sufficient accommodation in the property for the rest of the family and a loft conversion was not possible. Essentially, the landlord stated that while some adaptations were possible, the property was not suitable for the whole family and under the current living conditions the resident’s daughter’s needs could not be met. The “best option” therefore was a move to a property more suitable for the family.
The landlord said in the response that the resident had been categorised as band B and she had also been listed for direct matching. Being listed for a direct match meant that the resident would be notified by the landlord if a suitable property became available. However, as the landlord had minimal suitable properties in its stock it could not provide a timescale for when a property may become available.
In the meantime, the landlord had agreed to the temporary adaptations suggested by the OT on 12 March 2021.
Between 24 April 2021 and 14 November 2023, there is evidence to show the landlord assessed 11 different properties against the resident’s needs, all were rejected due to various reasons such as size, location, lack of wheelchair access and an inability to adapt. In this time period, the landlord reviewed the resident’s banding and she remained in band B. While the resident initially said she would be willing to relocate if this would expand the property search, the family’s circumstances later dictated that they would need to remain in the same area.
The resident’s MP made contact with the landlord on 30 January 2023 seeking information on how the landlord decided whether a property was suitable for adaptations or not. The landlord issued a detailed response to the MP on 1 February 2023 reiterating many of the same points made in its stage 1 response to the resident. The landlord confirmed that it did not carry out a feasibility visit to the resident’s property as the member of staff who prepared construction drawings, wrote the specifications and managed the building works, was the person who was responsible for the assessment the landlord had provided. The landlord also provided detailed commentary on the alternative properties it had inspected and why it had decided they were not suitable for adaptation.
The resident escalated the complaint to stage 2 on 22 February 2023. She was unhappy as she felt no progress had been made since her initial complaint in 2021. She explained to the landlord that her daughters room could not accommodate a 360 degree turn of her wheelchair. The resident also felt the landlord had rejected properties on the basis of adaptation costs. She was unable to apply for housing with other councils due to a lack of local connection and wanted the landlord to reconsider one of the properties it had recently rejected and give approval for adaptations.
The landlord issued a stage 2 response on 16 March 2023. The landlord clarified it had assessed a number of properties, but none had been deemed suitable. It reassured the resident that its allocations team were checking void properties for suitability. It also explained that there was a budget for adaptations, but any major adaptations that were conducted had to meet the requirements as set out in the statement of need. The landlord stated the properties it had identified were not suitable for adaptations or extensions. The landlord stated it would commit the full amount of £30,000 that it was permitted to do under its policy towards major adaptations. The landlord said the total cost of the works required were likely to cost three times this amount. The landlord would continue to seek suitable properties.
On 19 April 2023 the landlord received contact from the children’s community nurse and the resident’s daughter’s GP seeking an update on the matter and expressing the urgent need for a move. In response the landlord explained its allocations team were aware of the requirements and were actively investigating available properties.
The resident referred the complaint to this service on 12 July 2023. She expressed that she felt the landlord had not recognised the severity of the situation and had failed to adapt the current property. The resident informed this service on 22 February 2024 that she felt the landlord had turned down potential properties for issues that were fairly minor and could be overcome. As an ideal outcome the resident wanted the landlord to be more thorough in its assessment by putting forward planning permission applications before it rejected a property.

Assessment and findings

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42 of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. Rehousing request.
Paragraph 42(j) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “fall properly within the jurisdiction of another ombudsman, regulator or complaint-handling body”.
The resident wants to be permanently moved to alternative accommodation which is suited to the needs of her household. The request is based on health/welfare grounds.
Part 6 of the Housing Act (1996) governs the allocation of local authority housing stock in England. It sets out the circumstances where reasonable preference must be given to certain applicants, when making decisions about offers of property. The reasonable preference criteria include applicants living in unsuitable conditions and applicants who need to move on medical or welfare grounds.
The Housing Ombudsman can only consider complaints about transfer applications that are outside of Part 6 of the Housing Act (1996). The Local Government and Social Care Ombudsman (LGSCO) can review complaints about applications for rehousing that fall under Part 6. This includes complaints concerning applications for rehousing that meet the reasonable preference criteria and the assessment of such applications.
Since the resident’s rehousing request falls within Part 6 of the Housing Act (1996), it cannot be reviewed by the Housing Ombudsman. In this report the Ombudsman has referred to the landlord’s overall actions in terms of the resident’s rehousing application, including the banding given and its consideration of other properties and whether these could be suitable for the adaptations needed. However, if the resident wishes to raise specific concerns about the landlord’s decision making in relation to her rehousing application, in terms of the priority her application has been given, and the offers made to her, these are matters that would fall within the LGSCO’s jurisdiction.

Scope of investigation

The resident has mentioned that the lack of the required adaptations has impacted her daughters health. The Ombudsman does not doubt the resident’s comments regarding their daughter’s health, however, 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, consideration has been given to whether the landlord appropriately assessed the resident’s household’s needs and also the general distress and inconvenience that may have been caused.

Landlord’s handling of adaptation requests following occupational therapist assessments.

The Ombudsman acknowledges that the adaptations that are the subject of this dispute are important to the dignity and quality of life of the resident’s daughter and her family. The Ombudsman understands that, as such, this matter has been a particular source of concern and importance for the resident.
The landlord’s disabled adaptation policy states major adaptations include extensive structural alterations such as extensions to properties that will normally cost between £1,200 and £30,000. All adaptations estimated to fall within this cost range require an OT assessment and the completion of a statement of need. Any recommended adaptations would be considered on the grounds of reasonableness and whether practicable, taking into account the type, age and condition of the property.
Where funding is required beyond the maximum of £30,000 to a property the landlord’s policy states it will work closely with partner organisations and the tenant to ensure other long term options have been considered and other funding sources have been explored.
In situations where major adaptations are not practical to a tenants home, the landlord will work closely with the tenant, housing colleagues and other agencies to find a more suitable property to enable the tenant to transfer.
Where the landlord considers a move to other suitable accommodation as a possibility, it will award a priority banding to the tenant to move through the landlord’s home choice scheme. Under the policy it is possible to award a ‘B’ priority to help move a tenant quickly. Alternatively a direct match can be applied when a suitable property becomes empty.
The policy also says the landlord’s initial investigation following the receipt of an adaptation request should take no more than 10 working days. If the landlord was required to contact other agencies for further information, the investigation may take longer.
The Equality Act 2010 provides a discrimination law to protect individuals from unfair treatment and promotes a fair and more equal society. The Act requires any person or organisation which carries out public functions to have ‘due regard’ to how they can eliminate discrimination, advance equality of opportunity and foster good relations in doing so. Under Schedule 4 of the Act, “it is never reasonable for A (the landlord) to have to take a step which would involve the removal or alteration of a physical fixture.” Therefore under the Act, there is no legal obligation on the landlord to make physical adaptations, however, the landlord has demonstrated due regard to its obligations under equality law by following its disabled adaptations policy in its attempts to date to find suitable properties to conduct the required adaptations.
Following receipt of the statement of need from the OT, while the landlord communicated with the OT and suggested it was unlikely the property could be adapted, it did not communicate its decision and reasons for this until a formal complaint was made by the resident. The statement of need was submitted on 10 December 2020 and the landlord responded to the OT’s recommendations on 26 March 2021 in its stage 1 complaint response. The landlord took approximately 74 working days to respond to the adaptation request, which was outside of the timescale set out in its policy. This was not appropriate and given the nature of the issue, the delay was likely to distress the resident. It would have been reasonable for the landlord to communicate that there would be a delay in responding to the request when it became aware it would not meet the 10 working day deadline.
Despite the delay, when the landlord did respond directly to the resident about the adaptation request, it acted in accordance with its policy. It took into consideration the condition and structure of the property and decided it was not possible to adapt it to meet the requirements set out in the statement of need due to structural issues and a lack of space. It was reasonable for the landlord to also consider the size of the family as a factor in deciding that a move to a suitable property was the most feasible course of action.
The landlord was in agreement with the resident that her family had outgrown the property. The landlord appropriately reassessed the resident’s priority for rehousing given the change in circumstances. Furthermore, it was also appropriate to list the resident for direct matching as this meant the landlord would be matching the resident to a property based on the assessed housing needs as opposed to bidding on properties which may not be suitable. It was also reasonable for the landlord to manage the resident’s expectations regarding the timescales by explaining there were minimal suitable properties in its stock.
In the circumstances where the resident was waiting for a permanent solution to her housing needs, the Ombudsman would expect that the landlord was making any possible smaller scale adaptations in the interim period to accommodate the resident’s daughter’s needs. The evidence shows that the landlord did approve the OT’s request for temporary adaptations, however, the resident confirmed to this Service that the adaptations were not carried out, as she did not think they would make a difference.
The landlord failed to address the resident’s query in her initial complaint about why a feasibility visit had not been carried out. The evidence shows it was not until 1 February 2023 in the landlord’s response to an MP enquiry that it explained its reasons for this. While it was reasonable for the landlord to rely on the assessment of the member of staff who was heavily involved in the construction of the property, given the resident’s concern, this should have been communicated to the resident clearly. Had the landlord done this at the earliest opportunity, it could have alleviated the doubts the resident may have had about the basis of the landlord’s decision that the property was not suitable for adaptation. In failing to do so, the lack of transparency contributed to the deteriorating relationship between the resident and the landlord.
The landlord has demonstrated in the evidence provided to this Service that its internal teams are working closely to accommodate a suitable move. The landlord may want to consider working in collaboration with other local authorities and housing associations to widen the pool of available properties as this has not been evidenced so far. The Ombudsman does, however recognise that the resident’s need to remain in the same locality limits the search.
In addition to this, while the landlord had informed the resident it would commit £30,000 towards the cost of adaptations, it also said the works are likely to cost triple this amount. It is appropriate for the landlord to work with partner organisations and the resident to ensure additional and alternative funding sources have been explored to ensure the maximum available funding is being considered when reviewing the suitability of properties.
This service acknowledges the distress and frustration experienced by the resident due to the number of properties that have been deemed unsuitable since the landlord began its search for a property. However, the number of properties the landlord has assessed indicates it is actively seeking potential properties to find one that is suitable in accordance with its policy. Due to the specific needs and requirements, this Service recognises that finding a suitable property was and is likely to take some significant time. As mentioned previously, if the resident is dissatisfied with the banding she has been given and the landlord’s decision making in relation to her re-housing application she can approach the LGSCO regarding this.
While the Ombudsman acknowledges the difficulties being experienced by the resident and her household, overall the landlord has acted appropriately and in accordance with its policy following the recommendation for complex adaptations. It was entitled to rely on the factors listed for consideration when determining whether complex adaptations were both reasonable and practicable. Its decision to pursue alternative accommodation was reasonable in consideration of the circumstances of the case. However, there was service failure by the landlord with regards to its communication with the resident about the matter. There were missed opportunities for the landlord to be more transparent and open with the resident directly to establish and maintain her confidence in the landlord’s service provision. The landlord is ordered to pay the resident £200 in recognition of this service failure.

Determination

In accordance with paragraph 42(j) of the Scheme, the resident’s complaint about the landlord’s response to the resident’s request to be rehoused is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s handling of adaptation requests following occupational therapist (OT) assessments.

Orders

The landlord shall take the following action within four weeks of the date of this report and provide the Ombudsman with evidence of compliance with these orders:
1. The landlord is ordered to apologise in writing to the resident for the failings identified in this report.
2. The landlord is ordered to pay the resident £200 in recognition of the failures identified in this report regarding its communication with the resident.

Recommendations

It is recommended for the landlord to carry out regular reviews on the progress of the search for a suitable property and agree a schedule of updates keep the resident informed of its actions. This is to include discussions around the sources of available funding.
It is recommended due to the elapsed time since the relevant OT referral that the landlord make a new referral to an OT for a up to date assessment to identify any current needs that may be accommodated in the interim period
Given the concerns expressed by the resident about the reasons the landlord has been rejecting potential properties, it is recommended for the landlord includes the details and rationale of any rejections as part of its updates and the avenues available for the resident to challenge its decision making if there is a dispute.