Summary: Mr B complains the Council unreasonably paid his builder for disabled facilities grant works when the works did not match the schedule agreed. The Council was not at fault for its decision to release part funding for the works although it should have explained the basis of its calculation to Mr B and the builder more clearly. That caused Mr B frustration. An apology to Mr B and an agreement to set out in writing the Council’s calculation of the amount released is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council unreasonably paid his builder for disabled facilities grant works when the works completed did not match the schedule of works. In doing so Mr B says the Council conspired against his family, provided false statements, lied, harassed and intimidated his family and colluded with the builder.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(3))
3. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided;
5. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

6. Section 39 of the Housing Grants, Construction and Regeneration Act 1996 says:

“(1)The local housing authority may pay a grant or part of a grant:

(a)by payment direct to the contractor, or

(b)by delivering to the applicant an instrument of payment in a form made payable to the contractor.

They shall not do so unless the applicant was informed before the grant application was approved that this would or might be the method of payment.

(2)Where an amount of grant is payable, but the works in question have not been executed to the satisfaction of the applicant, the local housing authority may at the applicant’s request and if they consider it appropriate to do so withhold payment from the contractor. If they do so, they may make the payment to the applicant instead.”

7. The Ombudsman has issued the guidance document: ‘Making a house a home: Local Authorities and disabled adaptations’. This says authorities must be satisfied works have been completed satisfactorily before making a payment. In some cases payments are made to applicants or their representatives. However a housing authority can make payments direct to a contractor if the applicant has been informed.
8. The Ombudsman’s guidance says housing authorities can withhold payment from the contractor if an applicant is unhappy with the work. However it must be satisfied it would be appropriate to do so. In such cases they can make the payment to the applicant instead.
9. The Ombudsman’s guidance refers to statutory guidance which says care must be taken when making payments direct to contractors especially where there is a difference of view about whether work has been carried out properly. Most housing authorities ask applicants to sign a form to say they are happy with the work and for payment to be made. This reduces the risk of disputes arising at a later stage. However, the guidance says housing authorities can still pay a contractor if they are satisfied the work has been carried out correctly even if the applicant does not agree.

Background

10. In 2017 Mr B applied for a disabled facilities grant for works to his property. Those works included enclosure of a section of his garden and rear yard with an un-climbable six-foot fence to provide a secure playing environment for his son.
11. The builder began works at the property in February 2018. The Council visited in April. Following that visit the Council queried placement of the fence away from the original boundary. The Council carried out a further visit at the end of April. During the visit Mr B raised concerns about the works completed. The Council asked the builder for clarification on some works. The builder’s response satisfied the Council.
12. The Council wrote to Mr B in May 2018. The Council told Mr B it considered the fence fit for purpose in terms of its height, that the purpose of the fence was to prevent his son climbing out rather than preventing anyone climbing in and that the reason for the fence being placed along the bottom of the party wall rather than on top was acceptable. The Council told Mr B it had asked the builder to move part of the fence.
13. Mr B asked the Council for an opportunity to talk to somebody about his complaint. The Council arranged a site visit. Following that visit the Council wrote to Mr B. In that letter the Council said:
• It considered although the fence panels did not measure six-foot the fence as built met the purpose of the fence which was to provide an area safe for Mr B’s son to play in;
• the schedule of works did not say whether the fence needed to be un-climbable from one side or both sides but the statement of needs stated the purpose of the fence was to provide a safe area for Mr B’s son to play in. The Council said as his son could not climb the fence from the inside the fence met his son’s needs.
• the fence between the two properties met the description of a boundary fence based on the English dictionary definition;
• there was a gap between the original fence and new fence but because the works were next to a highway the height must not exceed one metre. So, the fencing needed to be relocated two metres from the boundary wall, the cost of which the disabled facilities grant would cover;
• it had accepted the fence had been built in front of the wall rather than on top of it but apologised for not explaining why it had approved that;
• the matter of the leaning rear boundary wall was something Mr B would need to report to his landlord as the Council did not have evidence the builder damaged the wall.
14. The Council explained although Mr B felt the fence did not meet the specification and required replacement the Council's responsibility was to provide a grant for works necessary, appropriate, reasonable and practicable to give disabled people better freedom of movement into and around their homes. The Council said it considered the fence, after part of the fence facing the road was moved, met the needs identified in the statement of need to provide his son with a safe area to play in.
15. The Council explained section 39 of the Act referred to in paragraph 6 of this statement. The Council said because Mr B was unhappy with the fence the Council would provide him with the grant sum agreed for him to pay the builder directly. The Council made clear though the builder would need to come back to rectify the outstanding works which included moving the fence next to the public highway. The Council offered help in identifying another contractor if Mr B would prefer.
16. Mr B’s partner contacted the Council in August to ask it to release the grant payment. The Council reminded Mr B’s partner about the outstanding works and asked whether those had been completed. The Council chased Mr B’s partner for that information in October.
17. In October Mr B's partner chased the Council for payment of the grant. The Council agreed to release £5,000 to reflect the works completed which did not need rectification. The Council asked Mr B’s partner for an update on what was happening with seeking approval for the relocated fence. The Council sent Mr B’s partner a cheque for £5,000 in December 2018, made out to the builder.
18. The Council told Mr B an officer would visit in January 2019 to discuss relocating the boundary fence away from the public highway. The Council suggested Mr B invite the builder to the meeting. The Council also contacted the builder who said it would carry out works to the fencing.
19. Mr B asked the Council for clarification about how it had calculated the £5,000 released. The Council told Mr B it had estimated the value of the works.
20. The Council contacted Mr B again in March. The Council asked for an update on what was happening with moving the fence. The Council said if it did not receive an update from Mr B within 28 days it would close the case and not release any further payments
21. The Council chased Mr B in May 2019. The Council told Mr B the builder had said it had not received any payment. The Council said the bank would not honour the cheque after 13 June. The Council told Mr B it could not issue any further payment and had closed the grant.
22. In July the Council told Mr B it had cancelled the cheque as more than six months had elapsed. The Council told Mr B it intended to pay the builder directly. Mr B objected as he was not satisfied with the quality of the work. The Council reiterated the builder had completed some works to the Council’s satisfaction. Mr B again raised concerns and referred to he and his partner being disabled. The Council advised Mr B it did not have details of any disability for him or his wife and said he had not provided details of any reasonable adjustments he required in response to earlier correspondence.
23. I understand since then Mr B has found out his road is a private road and not adopted highway. Mr B therefore believes he does not have to move his fence. The Council’s position is the grant application remains closed but it is willing to work with Mr B if he is willing to engage in a reasonable and meaningful way to resolve the situation.

Analysis

24. Mr B says the Council should not have paid his builder for the works completed as part of a disabled facilities grant. Mr B says the builder had not completed the works in accordance with the schedule of works and therefore the Council should not have paid the builder. Mr B says in making such a payment and in its communications with the builder the Council has demonstrated it has conspired against his family, provided false statements, lied, harassed and intimidated his family and unreasonably tried to defend the improper way the builder carried out the work.
25. I have carefully considered the documentary evidence. I understand why Mr B would have expected the Council to withhold payment to the builder when he is not happy with the extent or quality of the work undertaken. I say that particularly given the grant contract says the Council will only pay when both the applicant and Council are happy with the works completed. The notice of approval also says if there is a disagreement the Council will make a payment in the builders’ name which is sent to the applicant. Both those documents suggest the Council will not make a direct payment to the builder. However, the Housing Grants, Construction and Regeneration Act 1996, which I refer to in paragraph 6, does not require the Council to withhold payment of a grant if the applicant is unhappy with the works completed. Instead, that is a discretionary power. In those circumstances the Ombudsman would expect the Council to carry out an inspection of the works completed and take a view about whether it can make a payment. In this case the Council is satisfied the builder has carried out some, but not all, the works. On that basis the Council decided to release a payment of £5,000 which it considers reflects the cost of the works completed. I recognise Mr B strongly disagrees with that decision. However, the Council reached that decision properly after visiting Mr B’s property. I therefore have no grounds on which to criticise it. The Ombudsman’s own guidance, which I refer to in paragraph 9, makes clear it is not fault to pay a contractor directly even if the applicant disagrees. I agree though the Council’s grant paperwork in this case did not make that option clear. If the Council intended to retain that option it needed to make that clear to grant applicants. Failing to do that in this case is fault. That raised Mr B’s expectations and has fuelled his complaint. I recommended the Council consider amending the wording on its paperwork so applicants are aware there are circumstances where the Council will release a payment direct to the builder. The Council has confirmed it has already amended the wording to make clear to future applicants there may be situations when the Council will pay contractors directly. I welcome that.
26. Mr B has raised concerns about the works carried out and, specifically, the fact someone can climb the fence from the outside. I refer in paragraphs 13, 14 and 15 to the view the Council has taken on the works carried out by the builder. Except for of the issue of the location of part of the boundary fence the Council is satisfied the works carried out meet the requirements of Mr B’s son. As the Council has reached that decision after visiting the site there are no grounds on which I could criticise it. As I said in paragraph 2, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. In this case the Council has decided the works carried out enclose the garden so Mr B’s son cannot run out into the road. The Council therefore considers, other than moving part of the fence, the works carried out by the contractor are enough to warrant part payment of the grant. Again, that is not a decision I could criticise no matter how much Mr B disagrees with it. That is because the Council has reached its decision after visiting Mr B’s property to inspect the works carried out.
27. I have found no evidence to suggest the Council conspired against Mr B’s family, lied, harassed or intimidated his family or that it colluded with the builder. Instead, the documentary evidence satisfies me Mr B and the Council take a different view about the quality and fitness of the works completed. It is Mr B’s right to take a different view to the Council. However, that the Council considers the works acceptable, except for the location of part of the boundary fence, is a judgement matter which the Ombudsman cannot comment on. Reaching a different judgement is not evidence either of discrimination or fault. I am satisfied though the Council has sought to work with Mr B to try to get the remaining issues resolved, although some of the issues Mr B is concerned about are not matters the Council intends to act on. I have found no evidence of the Council harassing or intimidating Mr B or conspiring with the builder.
28. I am, however, concerned the Council has not properly explained to Mr B, or the builder, the basis on which it has decided £5,000 is a suitable payment. I would have expected the Council to write formally both to Mr B and the builder to explain the basis of the amount released and to clarify the outstanding works required and what the builder needed to do to access the remaining funds. The only documentation I have seen where the Council provided details of the outstanding works is in its letter to Mr B in May 2018, which attached a schedule of outstanding works. I understand the Council also sent a copy of that schedule to the builder, although I do not have a copy of those communications. I am concerned though the schedule does not make clear how the Council has calculated the amount released. Failure to make clear the Council’s calculation of the £5,000 released and what it covers is fault. I am concerned without clarifying that to the builder Mr B is potentially left open to a claim from the builder for the outstanding money. I therefore recommended the Council confirm in writing to both Mr B and the builder the work which the £5,000 covers and what works were required, at the point at which the Council closed the grant, which would have enabled release of the remaining funds. The Council has agreed to do that.
29. Mr B says the Council discriminated against him by refusing to make a reasonable adjustment to meet with him or investigate his concerns about the works completed. Having considered the documentary evidence I have found nothing to suggest Mr B mentioned any difficulty communicating with the Council or any request for the Council to make a reasonable adjustment in 2018. Mr B did, however, say he wanted to speak to somebody about his complaint on 11 May 2018. I am satisfied the Council acted properly in response to that complaint by arranging a site meeting.
30. The Council has provided me with a copy of a document where someone writing on Mr B’s behalf asked the Council to arrange a meeting. I understand the Council received that in July 2019. However, the document is not dated or signed. In those circumstances I do not criticise the Council for failing to arrange a further meeting. In any event, by that point the Council had already written to Mr B to explain its view about the fencing and why it had released payment. The Council has, however, said in its response to my enquiry that although the grant is closed it is still open to discussion about the remaining works if Mr B is willing to engage in a reasonable and meaningful way. I welcome that and would encourage Mr B to take the Council up on its offer given the issue of whether part of the fencing needs to be moved further away from the highway. That meeting would enable Mr B to discuss with the Council whether the fact he lives on a private road affects the decision relating to moving the fence. Mr B will need to recognise though the Council does not share his other concerns about the works and will likely not address those issues further.

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Agreed action

31. Within one month of my decision the Council should:
• write to Mr B and the builder to clarify how it calculated the £5,000 it has released and what works remain uncompleted for the remaining grant; and
• apologise to Mr B for not making clear at the outset there were circumstances where the Council would release the grant funds direct to the builder.
32. The Council has amended the wording of information provided to grant applicants to make clear there are circumstances where a grant will be paid direct to the builder.
33. Should Mr B take the Council up on its offer to discuss completion of the works the Council considers outstanding the Council should agree to meet with Mr B to discuss the remaining works and whether the fence needs to be moved from its current position.

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Final decision

34. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman