Summary: Mr G complains about the Council’s provision of adapted housing. And how, twice, it placed him in unsuitable accommodation. The Ombudsman upholds the complaint, because of fault with parts of the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mr G, complains:
• The Council placed him in unsuitable accommodation twice, with the promise of adaptations that did not materialise.
• The first address did not (and could not) meet his needs, as it could not be made wheelchair-accessible.
• His current property needed adaptations, which were promised in November 2019. They were delayed.
• The Council did not properly consider his disability when considering the suitability of both properties.

Back to top

What I have investigated

2. I have investigated the two house moves and considered the Council’s responses to issues Mr G raised before his March 2020 complaint to the Ombudsman. Mr G had later issues of concern about adaptations to his flat. But, as they post-date his Ombudsman complaint, they are outside the scope of this investigation.

Back to top

The Ombudsman’s role and powers

3. 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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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)

Stock transfer and housing allocations

6. Some councils no longer have any housing stock. But they are still under a legal duty to have a scheme for allocating accommodation. Such schemes are often run in partnership housing associations. This includes associations that own and manage a council’s former housing stock. Some councils run housing allocations schemes in partnership with neighbouring authorities and housing associations.
7. In these circumstances the housing association or partnership scheme is acting as the agent of the council and so we should consider the complaint. (Local Government Act 1974, section 25(7))

COVID-19

8. This complaint involves events that partly occurred during the COVID-19 pandemic. We have published guidance about our expectations during the pandemic: ‘Principles of Good Administrative Practice during Covid’. That guidance recognises emergency working would likely cause backlogs in access to many lower priority services.

How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint from Mr G;
• made enquiries of the Council and considered its response;
• made further enquiries of the Council;
• considered information from the Council’s housing partner;
• considered evidence from the County Council’s Occupational Therapy team;
• considered updates from Mr G; and
• sent my draft decision to Mr G and the Council and considered their responses.

Back to top

What I found

Legal and administrative background

Homelessness

10. The law about homeless applications says that Councils have a full duty to re-house applicants who are eligible, homeless or threatened with homelessness, in priority need, not intentionally homeless and who have a local connection. (Part VII of the 1996 Housing Act)
11. After completing inquiries, the council must give the applicant a decision. All letters must include information about the right to request a review and the timescale for doing so. One of the reviewable issues is about the suitability of accommodation. (Housing Act 1996, section 184, from 3 April 2018 Homelessness Code of Guidance 18.32 and 18.33)

Housing allocations

12. The law regarding local authority housing allocations can be found in Part VI of the 1996 Housing Act. This requires councils to devise allocation schemes for deciding priorities between applicants for housing. It gives councils a good deal of discretion over how they allocate their housing stock.
13. Any decisions made about a housing application can be challenged by seeking a review with the council. However, unlike homelessness decisions, there is no right to challenge review decisions in court (except by Judicial Review).

East Kent Housing Disabled Adaptations Policy

14. East Kent Housing (EKH) was the organisation that managed social housing for the Council. Its policy said:

• In order for it to carry out adaptation work, it needed a referral from a County Council Occupational Therapist (OT).
• It considered minor, routine, work in referral date order, with an aim to complete the work within three months.
• Residents with disabilities sometimes needed tailored solutions. Factors it considered before it started tailored work included:
1. The current and future needs of the resident.
2. The resident’s disability.
3. Assessment/recommendations of healthcare professionals.
4. Characteristics of the home, its construction and internal arrangement.
5. Planning and building regulation issues.
6. Budget and long-term property asset implications.
7. Cost-effectiveness.
8. Alternative solutions to meet assessed needs.
9. Impact on other residents and the common areas.
10. Fire, health and safety legislation.

What happened

Background

15. Mr G is in his 70s and lives alone. He has hereditary spastic paraplegia, a progressive, neurological condition that affects his mobility. He has also had a stroke and has arthritis.
16. The NHS’s information on hereditary spastic paraplegia notes:

‘… the severity and progression of symptoms will vary from person to person … Some people are severely affected and need a wheelchair, while others have mild symptoms and do not need to use a mobility aid.’

17. In his complaint to the Ombudsman, Mr G cited letters from his GP and a consultant from 2015, 2016 and 2017. These noted he needed wheelchair use ‘…for most of the time’. And that walking on an arthritic hip was causing pain and potentially irreparable damage. These letters are not in the Council’s file.

The first move

18. Mr G first approached the Council in August 2018 to advise he was potentially homeless, as he was losing his home. The Council accepted a duty to re-house him, under homeless law.
19. In September, a Council officer visited Mr G, to help him complete an application for re-housing. The application form noted Mr G was a wheelchair user, when inside. Mr G gave the Council information to support his application. In relation to his disabilities, this included a letter from another Council from 1994, noting Mr G was registered as disabled. And a letter from a medical professional following a 2018 appointment. This noted Mr G’s disabilities. It said Mr G could walk with two sticks ‘… albeit in a precarious manner …’.
20. The Council officer’s notes say:
• Mr G ‘very had poor mobility’;
• Mr G would need an adapted property that was wheelchair accessible;
• ‘he cannot manage any steps as he is reliant on getting to and from his current home in a wheelchair’;
• she advised Mr G the Council had ‘…very limited accommodation that would suit his needs’.
21. The Council made Mr G a direct offer of an adapted bungalow (Address 1). The tenancy began on 1 October and was managed by EKH. The Council wrote to Mr G advising it was ending its homeless duty to him. It advised he could request a review of within 21 days.
22. After the sign-up, Mr G and an OT from the County Council visited the bungalow to assess Mr G’s equipment and adaptation needs.
23. On 8 October, the OT telephoned and emailed an officer at EKH listing the adaptations Address 1 needed to allow Mr G to move in. This included changes to the shower and hand-rails. The OT also advised the front step needed levelling, as Mr G could not ‘lift his foot sufficiently to step up safely. This will need an assessment of what could be done please’.
24. On 10 October the OT sent EKH her report. It requested:
• moving of a shower seat;
• grab rails;

• ‘Occupational Therapy Service recommend that front step area be levelled so that client can access without having to use step; as client is still able to walk with aid of sticks and no long term evidence that client will be wheelchair dependant in future.

[Officer] at EKH is requesting this area be ramped for future use, as property is disabled bungalow’.

25. On 10 October EKH asked its contractor to move the shower seat and a hand basin and to fit some grab rails. The Council has not sent me any records of EKH following up (at that time) the OT’s recommendation of an assessment of what it could do about fitting a ramp.
26. Mr G was evicted from his old home on 24 October 2018 and he moved to Address 1.

Mr G’s deteriorating mobility and the new assessment

27. In May 2019, Mr G wrote to the Council about problems he was facing at Address 1. These included problems with using his wheelchair in the flat. And that the front door was not accessible for him.
28. EKH advised Mr G he would need an OT referral before it would make further adaptations. So an OT from the County Council visited Mr G in June, to assess whether Address 1 could be made wheelchair accessible. Her assessment record notes Mr G:
• stated on bad days he would use a wheelchair; however, Address 1 was not suited for wheelchair mobility;
• was observed to manage the one step to access the property with rails and crutches ‘… with difficulty and effort’;
• said he felt a ramp would be easier than steps to manage.
29. In July, Mr G’s GP confirmed his mobility was rapidly worsening. On 10 July the OT visited again, with EKH’s officer. The EKH officer’s opinion was the home was not fully adaptable, so would not meet Mr G’s long term needs.
30. On 12 July the OT wrote to EKH’s officer advising Mr G had assessed needs due to his declining mobility, which was likely to necessitate wheelchair use. She noted EKH’s officer ‘… agreed the front could be ramped with hand rail one side’.
31. The Council says it expected the ramp would have been completed in two to four months. Bad weather caused a delay. The Council says when EKH’s contractors were ready to install the ramp, it was clear the property was not suitable for Mr G's long-terms needs, so EKH decided not to install it.

The second move

32. In August, the Council’s housing allocations team spoke to Mr G. After assessment by its medical panel, the Council placed Mr G in its highest band for re-housing.
33. Around the same time, Mr G altered his standing order for his rent, so it did not meet the full amount. He told the Council he did this as the bungalow was not suitable for wheelchair use. This meant from then Mr G started to build up rent arrears.
34. In September, Mr G, EKH’s officer and the County Council’s OT viewed a property. The professionals’ view was that, although the property would be an improvement on Address 1, wheelchair access would remain difficult.
35. The OT’s records from that time mentions another property (Address 2) that the Council’s housing team had advised would be completed in November (it was being refurbished). EKH’s officer agreed to view that property.
36. The Council has sent me a series of internal emails from early November discussing a request that Mr G’s rent arrears did not become a barrier to him moving. It noted a clause in Mr G’s tenancy agreement allowing a transfer of Mr G’s arrears between properties. On 12 November the Council authorised an urgent management move for Mr G to Address 2.
37. On 25 November Mr G visited Address 2. He says on this date officers promised adaptations to the flat. EKH’s officer says Mr G agreed he would move and settle in first. The officer would visit in the new year to see what rails and other adaptations Mr G needed. The Council has not sent me a contemporaneous record of that visit, or the advice the officer gave.
38. On 27 November, Mr G contacted the County Council’s OT to advise that ‘all of a sudden’ the Council had allocated him Address 2. And that he was worried about the move. The OT spoke to EKH’s officer. The OT’s record says the officer told her the flat was fully accessible, but that the toilet might need moving. They had also discussed possible access via the flat’s patio doors. But this had not been confirmed and would need exploring after Mr G moved in.
39. Mr G wrote to the Council on 1 December about several issues. One of those was that the need for adaptations to Address 2’s bathroom were urgent. He noted a visit on his behalf by his friend. She was told the adaptations would wait until after Mr G had moved in. Mr G said he needed a fully functioning bathroom before he moved.
40. Mr G signed the new tenancy on 5 December. On it he put that he had signed it ‘under duress’.
41. Mr G moved on 10 December 2019. The Council paid his removal costs of over £500. This was in response to a complaint Mr G made (although it had not upheld the complaint).
42. On the day Mr G moved, the County Council’s OT visited Address 2. She noted Mr G could not use a toilet seat and frame the OT had ordered as a temporary measure. They checked a communal toilet in the block. Mr G said he would use that toilet, if he could not use the one in the flat.
43. The Council’s complaint team has a record of an email from 11 December, from EKH’s officer, advising he would ask contractors to assess Address 2 for fitting rails and raising the toilet.
44. On 12 December the County Council’s OT recommended EKH raise Address 2’s toilet seat, install some rails and a shower seat. She advised the toilet adaptations were urgent, as Mr G was finding it difficult to use the standard height toilet and was at a risk of falls.
45. On 15 December the Council received a letter from Mr G advising he had fallen in his new home.
46. Mr G contacted the Council via his councillor after he moved in. On 17 December EKH’s officer emailed several officers and the councillor telling them EKH’s contractors were visiting Address 2 that day to install some rails and assess the toilet. The contractor attended and fitted a grab rail and ordered a drop-down rail for the toilet. But it reported back to EKH that it could not fit a grab rail in the shower, due to the way the wall there was constructed.
47. There was also a problem with the wet-room not draining well. EKH advised this was an issue for the contractors who had carried out the refurbishment of the flat. As this is not related to the disabled adaptations, this issue is outside this Ombudsman’s jurisdiction.
48. Later in December 2019, Mr G raised other concerns about the flat, including pending problems (when he became wheelchair bound) in accessing the button for the door.
49. The County Council’s OT chased an update from EKH’s officer. He responded in early January 2020 to advise contractors would attend that week to fit grab rails and assess if they could install a toilet like the communal one Mr G was using.
50. The OT and officer conducted a joint visit to Address 2 later in January. The OT emailed the officer at the end of January. She advised that she was making further recommendations:

• an electric door opener and repositioning of the door entry system to enable access to the flat;
• repairs to the wet room to stop water pooling;
• confirmation of the raised toilet height.

51. A manager from the Council visited Mr G in early February with somebody from its building contractors. After, the manager emailed Mr G advising they had agreed:
• to make some changes to Address 2’s front door;
• an extra intercom fitting;
• works to the bathroom;
• a new toilet – the same as found in the communal toilet; and
• handrails.
52. The manager also advised Mr G the Council had referred his request for a ramp, from the patio door, back to EKH. Mr G wanted it adapted, to allow him access to the block’s communal garden. The manager says he explained to Mr G the alteration might not be possible, as it would compromise other access points to the garden. The Council has later confirmed it could not fit a ramp for those reasons.
53. The Council says the works should had started towards the end of March, but were delayed by the first COVID-19 lockdown, when it says ‘all but essential repair work was delayed’. The Council’s and EKH’s records show its contractors could not gain access to Mr G’s accommodation due to the strict rules in place then.
54. Mr G first complained to the Ombudsman in October 2019, about the unsuitability of Address 1. We asked the Council to first consider the complaint. After completing the Council’s complaint’s procedure, Mr G complained to the Ombudsman in early March 2020, which also included a complaint about Address 2. Our investigation was delayed by a pause in our investigation because of the first COVID-19 lockdown.
55. Mr G had to move out of his flat for the works, which started after the COVID-19 lockdown ended.
56. In the time since Mr G’s complaint to the Ombudsman, the County Council OT team advised the Council it wanted to reassess Address 2, following a worsening in Mr G’s health. This has led to meetings about works needed.
57. In response to my enquiries, the Council advised:
• EKH had now disbanded and the Council was directly managing its housing stock and tenants. It says this should mean adaptation work will be more integrated in future.
• The EKH officer who dealt with Mr G’s move was part of the transfer of the housing responsibilities. He advised he would now keep a written note of conversations that took place during site visits.

Was there fault by the Council?

Jurisdiction

58. We would not normally investigate the suitability of accommodation provided under homeless law, because of the alternative remedy available – a right of review, including to court (see paragraphs 4 and 10).
59. But the Council advised Mr G of its decision several weeks before he moved in; so giving him limited time to request a review after the move. In those circumstances, I have used my discretion to consider the suitability of Address 1.
60. The Council’s offer of Address 2 was not through its statutory homelessness duties. So there was no court review route available. I do not consider it would be reasonable to have expected Mr G to have judicially reviewed the decision (see paragraphs 12 and 13). So I have also looked at the question of suitability for Address 2.

The move Address 1

61. The Council moved Mr G to Address 1 when he became homeless. Mr G believes the Council should have moved him then to a fully wheelchair adapted property.
62. In terms of the suitability of the flat itself, I do not see fault with the Council’s offer of the property. And that it did likely meet the test of suitability at the time of Mr G’s move. Mr G cites the progressive nature of one of his disabilities. And he cites the opinion of medical professionals. But the property had some adaptations. The OT did not raise concerns about the internal suitability of the flat, after the adaptations she recommended. The nature of Mr G’s disabilities meant the course of the deterioration of his mobility was uncertain. And it was some months before Mr G raised issues about the suitability, due to his declining mobility.
63. I can understand Mr G’s frustration at having to move again from Address 1. But I must assess the Council’s decision based on the information it had at the time (see paragraph 19). I cannot say it should have made an offer based on an assessment of Mr G’s possible future needs. So I cannot say that offering Mr G Address 1 was fault by the Council.

The ramp

64. I do though have concerns about how the Council and EKH dealt with the issue of Mr G’s access to the property.
65. Partly this is because advice around this was ambiguous:
1. The Council’s officer who visited Mr G noted:

• he could not manage steps and relied on using a wheelchair ‘on getting to and from his current home;.
• he only needed a wheelchair inside.
1. The County Council’s OT noted:
• Mr G could not safely use steps;
• EKH needed to assess what it could do about a fitting a ramp;
• there was no evidence Mr G would become wheelchair dependent in future.
1. Mr G had supplied medical records that he was ‘precarious’ when walking.

66. EKH’s officer advised the OT it would fit a ramp, as it would be of more general benefit. The OT asked EKH to explore what could be done. But neither the Council nor EKH has produced anything to show any progress on this after Mr G moved – ie after October 2018 (until the OT raised the issue again in the summer of 2019).
67. At the least, the Council or EKH should have sought to clarify any doubt caused by the ambiguous information, including the OT’s recommendation. The lack of a record of considering this issue was fault.
68. In 2019, after the OT raised the issue of the ramp again, EKH at first agreed to install one. The Council says it expected EKH to install the ramp within two to four months. This fits broadly with EKH’s policy on fitting adaptations. The OT did not note an urgent need to fit the ramp. So I cannot criticise the Council/EKH for adhering to the policy.
69. Nor can I fault if for not fitting it later, when Mr G was nearing a move away from the property.

The move to Address 2

70. After Mr G advised the Council of his worsening mobility, a County Council OT visited again, with EKH’s officer. The result of that inspection was a decision that Mr G needed to move, as the property could not be made fully wheelchair accessible.
71. Finding such a property was always likely to take some time – despite the fact the Council assigned Mr G the highest band on its housing register. When the Council identified a suitable property, it agreed Mr G’s transfer. So my view is the Council acted as quickly as it reasonably could in finding a new home for Mr G.
72. But there is a conflict in evidence between EKH’s officer and Mr G about the process of moving; particularly about whether Mr G should move to Address 2 before EKH completed some adaptations. EKH’s officer says Mr G agreed to move first. But he did not keep a record of that conversation.
73. There is a contemporaneous letter from Mr G stating his view the toilet adaptations were needed before the move. At a minimum, the Council or EKH should have acted on this conflict of opinion and have some record of considering Mr G’s concerns. To not do so was fault.
74. Some other poor record keeping has also meant I have had to seek clarification on some issues from the Council and EKH. One of our principles of good administration is that local authorities (and bodies acting for them) should keep proper and appropriate records. The records of Mr G’s move do not always meet this principle, which was fault.

The actions after Mr G moved

75. After Mr G’s move, the Council and EKH addressed Mr G’s concerns. They agreed further adaptations to meet Mr G’s needs. The COVID-19 pandemic meant this work was delayed. I cannot criticise that delay – as well as a general pause in all but urgent work, the Council says the contractors could not complete the work due to the strict rules in place during the first lockdown.
76. One alteration EKH and the Council have not agreed to is a ramp from Mr G’s patio door, to allow him direct access to the shared garden. It is reasonable for Mr G to want such access. But EKH and the Council have not agreed, due to other concerns. Given the competing factors at play – which are broadly those EKH’s policy anticipates, I cannot criticise the merits of the decision not to install the ramp.
77. Events after Mr G’s March 2020 complaint are outside the scope of this investigation.

Did the fault cause an injustice?

78. I note Mr G has withheld his rent due to his view about the suitability of the property. That is not an action that fits with the Ombudsman’s Guidance on Remedies. Instead I have looked at the distress the faults caused Mr G and considered what our guidance says about an appropriate remedy.
79. The issue with the ramp at Address 1 is with the lack of follow up after Mr G first moved. That creates uncertainty about what might have happened if the Council and EKH had acted without fault.
80. With the move to Address 2, again, the lack of records mean I cannot confirm EKH’s assertion Mr G agreed to move into Address 2 before the adaptations. Mr G strongly disputes this. And his actions show he was concerned about the move; especially the toilet provision. Those concerns were not unfounded, as the OT advised of changes needed to Mr G’s facilities after he had moved. Against that, is the fact that if Mr G had not moved earlier, he would have remained at Address 1, which all agreed was increasingly unsuitable for him.
81. I also note Mr G fell after moving to Address 2, although I am unclear if this was related to adaptations that could reasonably have been completed before his move.
82. But the inadequate records create some uncertainty about whether more could have been done – both in fitting a ramp at Address 1, sometime after October 2018, and in making some adaptations before Mr G moved to Address 2. That uncertainty is an injustice that demands some recognition in term of an apology and a symbolic payment.
83. I am pleased to hear that the officer involved in the events outlined in his statement is now keeping written records of site visits.

Agreed action

84. The Council agreed to pay Mr G’s removal costs. This is not something the Council usually pays for. The reasons it did pay them for Mr G are unclear (it did not uphold his complaint, so could not have been as a remedy for identified fault). But it was something I took into account when making my recommendations.
85. So, I recommended that, within a month of my final decision, the Council:
• wrote to Mr G apologising for the faults I have identified;
• made Mr G a symbolic payment of £200 (£100 for the faults at each address), to acknowledge the uncertainty around the moves and whether more could have been done.
86. Our Guidance says where a complainant owes a body in jurisdiction money, it is reasonable for the body in jurisdiction to offset a remedy payment against the debt. So if Mr G still has rent arrears, it is acceptable for the Council to offset the payment against those arrears.
87. The Council has agreed to my recommendations.

Back to top

Final decision

88. I uphold this complaint. The Council has agreed to my recommendations. So I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman