Decision : Upheld
Decision date : 07 Jan 2021
The Ombudsman's final decision:
Summary: There was some delay by the Council in flagging up poor workmanship funded by a Disabled Facilities Grant. Once the issues were logged the Council replaced the contractor and rectified the works. The Council helped put things right by organising various repairs to Ms B’s property, and for a cleaning company to attend. Ms B was hospitalised because of brick dust, it was very stressful, and her husband had a breakdown and had time off work. There is damage to her kitchen walls and garden, and to the neighbouring property. This injustice is caused by the actions of the contractor rather than the Council’s delay. The contract for the building works is between Ms B and the contractor; she would need to take a legal claim for her financial loss and/or personal injury.
- The complainant, who I will call Ms B, says the Council failed to properly project manage works to her property under a Disabled Facilities Grant. The Council failed to get a party wall agreement, failed to complete required building inspections, and paid for unsatisfactory works without checking the quality. Ms B says the Council did not listen to her concerns and stifled her by removing the project manager who was the only person who did listen and try to help. Ms B says the Council harassed and bullied her into doing things the way it wanted, to accept things that were not correct just to avoid being labelled as difficult and treated her differently because she made complaints. Ms B says the Council accused her husband of being physically abusive against her and her daughter and listened to the contractor’s unfounded claims the family were abusive and bullying.
- Ms B says she went to hospital with a chest infection because her concerns about the brick dust were not listened to or properly managed. Ms B says her care needs were not met for approximately one year. Ms B says she had to live in a state worse than before the build started for a year. The whole experience was awful, and her husband had a breakdown and had to take weeks off work.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I considered:
- Information from Ms B, including during a telephone conversation.
- Information from the Council in response to my enquiries.
- The Housing Grants, Construction and Regeneration Act 1996.
- ‘Home Adaptations for Disabled People. A detailed guide to related legislation, guidance and good practice’. Issued by the Home Adaptations Consortium.
- ‘party walls and building work’ on www.gov.uk
What I found
- Disabled Facilities Grants (DFG) are for people with a qualifying disability who need adaptations in their home to help them remain living there. DFG’s are mandatory and must be awarded if the applicant meets the qualifying conditions. DFG’s are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Before approving a grant, a council must be satisfied the work is necessary and suitable to meet the disabled person’s needs and reasonable and practicable to complete.
- In 2019 the Council agreed Ms B needed a downstairs bedroom and shower room and would provide this under a DFG. The Council agreed the plans with Ms B, and building control approved the plans. The Council says although there was not a party wall agreement, the neighbours did consent to the work. The Council has not provided evidence to support this and Ms B disputes it.
- The Council tendered for the work and chose the contractor from its approved list but explained to Ms B the contract for the works is between her and the contractor. The Council explained it would pay the money to Ms B or her contractor when the works were completed to the Council’s satisfaction.
- The Council appointed a project manager to oversee the works. The project manager had a meeting with the contractor and Ms B before the works started, which included method statements for the work and a risk assessment. This is shown on the pre-start meeting checklist, though I have not seen a copy of the risk assessment.
- The Council has a ‘contractor code of conduct’ which includes taking care of the client’s property, for example taking precautions to keep carpets clean and cleaning up on completion of work. The Council expects contractors to adhere to this.
- The project manager visited regularly, and Ms B was happy with his service. During the build, the project manager says he had to ask the contractor to clear away materials, to keep areas tidy, and not to walk through the lounge with muddy boots, despite what was agreed at the start. However, this was not logged at the relevant time.
- Building control visited or assessed at key stages and signed off various elements of the works.
- The contractor gave the Council an interim bill. A senior Council officer visited the site and approved the invoice; the Council paid the bill. Ms B says she told them not to pay as the works were substandard, but I have not seen evidence of that.
- The works should have taken around six weeks, after around ten weeks the project manager completed a report to outline the progress. Ms B says this was done at her request. The project manager recorded that despite his requests the contractors had not taken proper account of Ms B’s health issues. The contractor had put up the required plastic sheeting to form a barrier between the house and the works, but it was insufficient, and dust came through. Also, the contractors were cutting through the lounge where Ms B was resting. The project manager found the works were not to standard.
- The Council asked the contractor to investigate and provide a report. The Council met with Ms B. The Council arranged a window company to complete some works and offered a deep clean of Ms B’s property. Ms B decided to hold off on the deep clean until all building works were complete.
- The Council removed the project manager from the project. Ms B found this upsetting, as he knew the case well and she felt was the only one who really listened and helped them. The Council explained this was due to other work pressures.
- The Council met with the contractor and decided to remove them from the project because of unacceptable workmanship and because Ms B refused to have them back. The Council also removed the contractor from its approved list and will not work with them in future. The Council appointed another contractor to correct the works. There was some delay in the works starting because of the Covid-19 pandemic, and then because Ms B’s children were home from university, so she wanted to wait until after September.
- The works under the DFG have recently completed. Ms B is happy with the completed works, and with the service from the second contractor. The Council arranged a cleaning company to clean Ms B’s house. Ms B has concerns about the standard of the cleaning works. Ms B told the Council the company had soaked her sofa, not put items back and not cleaned surfaces properly. The Council asked Ms B to send photos and contacted the cleaning company accordingly. The cleaning company provided evidence Ms B had signed to say they had been brilliant and professional. Ms B told the Council her reference to the company being brilliant and professional was because they were friendly, but she could not check the standard of the work until they had left; she has mobility issues, and it is difficult for her to move around.
- The cleaning company offered to return and correct any areas Ms B felt were not to standard, the manager said he would then visit to check the completed works. Ms B did not accept this as after a year of having people in and out she does not want anyone back in as finds it too stressful.
- Ms B says the sofa is stained and she wants it replacing. Ms B also says the kitchen walls are damaged by the contractor storing equipment there. Ms B has sent me photos accordingly. Ms B says she has tried to raise this with the Council but gets no reply. The Council says Ms B has never raised concerns about damage to the kitchen wall; that should have been part of the rectification works. It is too late to raise it now.
- The Council arranged repair works to Ms B’s kitchen door, a socket, radiator and carpet to the landing, and window repairs. The Council has agreed to pay for new carpet to the lounge, flooring to the hallway, and new French doors to the kitchen. The Council did works to the garden, reseeding an area the contractor had dug up and left.
- Ms B says the brick dust caused her to be hospitalised. Ms B says the situation affected her husband’s mental health, to the extent he had to have weeks off work, had a breakdown, and went upstairs and would not come down. It was a stressful time for the family, and not an ideal living situation, especially given Ms B’s health problems. Ms B also says there has been damage to her neighbour’s property that has not been put right.
- Ms B asked the Council for compensation. The Council explained as the contract for the works is between her and the contractor any claim for financial loss and personal injury should be directed to the contractor. Ms B has asked the contractor for their insurance details, but they have failed to respond. The Council took legal advice which said it cannot give Ms B the contractors insurance details as that is third party data. The Council has told Ms B she can claim against the contractor without the insurance details and has recommended she seek legal advice.
- Ms B says the Council made up that she and her daughter had bruising to their eyes and took forward a malicious safeguarding referral. I have seen evidence the Council received a concern that would trigger safeguarding, though delayed making a referral to the safeguarding team. When concerns are raised the Council has a duty to refer to the safeguarding team to consider if any action is needed to support an adult who may be at risk of abuse or neglect. The Council explains it should always err on the side of caution to report a concern to allow the safeguarding team to decide whether to investigate.
Was there fault causing injustice
- The original works were completed to a poor standard. This is because of actions of the contractor rather than actions of the Council. The Council followed due process and appointed a reputable contractor from its approved list. The Council got agreements from the start regarding the contractor’s method statements. The Council appointed a project manager who visited regularly and spoke regularly with the contractor to try and improve the working methods. There is no fault by the Council.
- The project manager did not log any of the issues on the Council’s records or escalate concerns to management. This was fault of the Council. As soon as the project manager logged concerns in his progress report the Council acted in response. It is possible the issues could have been flagged and resolved sooner, but it seems the project manager was trying to resolve them directly with the contractor.
- The Council is not responsible for the standard of the works, even though it is funding them via a DFG. At the start of the process the Council clearly told Ms B the contract for the works is between her and the contractor. Therefore, any claim against the contractor is for Ms B to take forward, the same as anyone having private building works.
- Ms B says the Council should not have paid the contractor without checking the quality of the works. I cannot question or criticise the Council’s decision to pay the interim bill, it did not simply pay it, a senior technical officer visited the property and agreed the Council should pay the bill. There was no comment about the standard of works, only that the builder had completed works to the value he was requesting. The Council missed an opportunity to establish the works were inferior, but this did not cause any significant injustice to Ms B. It was not long after the Council paid the bill that the project manager completed his report, and the poor workmanship was identified and dealt with. The Council has changed its process so that interim payments now need joint sign off from a technical officer and building control, and approval by the head of service, so that should prevent future problems.
- Ms B says there was no party wall agreement and no building inspections. If you are doing structural work on a wall you share with your neighbours, you need a party wall agreement. The works in this case were not on a shared wall. There is evidence the Council told the neighbours about the work and got their signed agreement, but not until the second contractor was appointed. Given the Council did this with the second contractor it is more likely than not that it should have done it with the first. This was fault by the Council. I have seen evidence of building control’s involvement, and that it signed off the works at key stages. There was no fault by the Council regarding building control involvement.
- When the Council identified poor workmanship, it properly investigated and decided to remove the contractor from the job. It also removed the contractor from its approved list to prevent future problems. There was no fault by the Council.
- To put things right for Ms B the Council appointed a new contractor to correct and complete the works. The Council has also taken remedial action within Ms B’s home to replace carpet, fix broken windows, and provide a professional cleaning company visit. Although it is possible the Council could have taken these actions sooner, I find the main injustice in this case is caused by the actions of the contractor.
- Although Ms B is unhappy the Council removed the project manager from the job, it is the Council’s decision to take on how best to use its resource. I cannot question or criticise the Council’s decision as I can see it was properly taken following consideration of workloads and discussion with its employee. It provided another properly qualified project manager to oversee the remaining works. There is no fault by the Council.
- It has taken almost a year longer than it should have for Ms B to get the adaptations she needs to her property. This has clearly had an impact on Ms B, but I cannot say that is solely because of the Council’s actions. There was poor workmanship by the first contractor, and then the second contractor could not start because of the Covid-19 pandemic and waiting until after September when Ms B’s children returned to university.
- The Council was right to advise Ms B that she can make a claim against the contractor for any impact on finances and/or health. The Council contacted the contractor asking it to give Ms B its insurance details and considered whether it could give her them directly. The Council also told Ms B she can claim without the insurance details and suggested she take legal advice. There is no fault by the Council.
- Ms B believes the Council made up the safeguarding allegation to discredit her and her ex-husband. I have seen evidence of the concern in the Council records, and of the Council officer making the referral. I cannot say the Council has made this up. It was correct for the Council to make a referral to its safeguarding team about such a concern, and this had no bearing on how the Council dealt with rectifying the poor DFG works. The Council delayed making the safeguarding referral, this does not cause Ms B any significant injustice. The Council has trained its staff on their responsibilities regarding safeguarding referrals to prevent future mistakes.
- The Council says it has learned from this complaint and taken the following actions:
- increased its staff training and process management with regards to contractor management.
- Implemented site logs a week after this complaint was made.
- Any interim payments are subject to Building control and Technical officers joint sign off which is presented to the Head of the department.
- All variations must be clearly presented by the contractors with supporting photos, and detailed costs for approval.
- Implemented a clear escalation process for staff and clients for any issues that arise, and updated the complaints procedure with timely responses in place.
- All cases are fully monitored on a weekly basis via the relevant management team with staff reporting on progress weekly. This helps identify potential issues before they become a complaint.
- Implemented a process where clients continually ring members of staff; the Council asks clients to email the department, so it can monitor communications and respond accordingly.
- Introduced robust specifications and re written the preliminary contract documents to align with the JCT minor works contracts 2016 to ensure contractors fully understand their responsibilities and are held accountable for any failures.
- Removed any contractors that have not performed to the Council’s standards. A total of four have been removed since March 2019
- Relevant managers are fully trained on reporting safeguarding issues
- Developing contractor Key Performance Indicators which will be reportable to the partnership board.
- Logging client satisfaction rates.
- I have completed my investigation on the basis although there was fault by the Council it did not cause Ms B significant injustice. The main injustice is caused by the actions of the contractors; they are not within the jurisdiction of the Ombudsman and Ms B would need to take private action against that company.
Investigator's decision on behalf of the Ombudsman