Summary: We have discontinued our investigation of this complaint. Most of the events happened more than 12 months before Mrs X complained to the Ombudsman. There would also be practical difficulties in carrying out a robust and fair investigation of more recent events without investigating what happened up to ten years ago.

The complaint

1. In 2008 the Council awarded Mrs X a discretionary housing grant and equity loan to fund works to carry out improvement and repairs to her home.
2. Mrs X complains about the poor quality of work done by the original building contractors in February 2009. She says they caused substantial structural damage to her property, the standard of their work was unacceptable, and they did not protect her belongings.
3. Mrs X also complains about the quality of work done by different building contractors who started remedial works in 2009. They left the site in August 2009.
4. Mrs X and the Council cannot reach agreement on the content of the latest revised Schedule of Works. Mrs X says certain items which were previously agreed by Council officers have been omitted from the latest version of the Schedule. Until this dispute is resolved, the works cannot be put out to tender to new building contractors.
5. Mrs X also considers the cost of work to a conservatory, which was not carried out by the building contractors, should be deducted from the contract price. She says the Council lost invoices and receipts she submitted to support her claim for reimbursement for certain items she paid for.
6. Mrs X says the original grant works and remedial works have still not been completed because of this long-running dispute. There are bare floorboards and bare plaster on the walls. She cannot decorate or have new carpets fitted until the works are satisfactorily completed. She says the property is uninsulated and there is no functioning heating system. She also has concerns about the structural stability of the roof after the original builders removed chimney breasts.

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The Ombudsman’s role and powers

7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. In cases where the period of alleged failure is very lengthy, we may decide to separate parts of the complaint and restrict our investigation to more recent events. But we must exercise caution about investigating historical allegations. The main reasons are:

Evidence: The further away in time an investigation takes place from the events to be investigated, the more difficult it can be to establish the material facts with reasonable confidence. We are less likely to be able to gather sufficient evidence to reach a sound judgement. Even if some evidence is available, we need to be particularly careful to ensure it is reliable, and provides a full picture.

Context: In many cases we cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was maladministration.

Remedy: In historical cases it is likely to be more difficult to achieve a meaningful remedy, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties.

9. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
10. We may decide not continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.,

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

11. I have spoken to Mrs X and considered all the information she sent me.
12. I considered the Council’s response to my enquiries and some of the key documents. This includes the grant application, grant approval notices and the Council’s 2008 policy on housing grants.
13. Mrs X and the Council have commented on my draft decision. I considered their comments before making a final decision.

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What I found

14. The events in this complaint occurred over a period of more than ten years. I do not attempt to describe everything that happened in this statement but give a concise summary of the key events.

Housing Renewals – Financial Assistance Policy 2006

15. In 2008 the Council offered discretionary financial assistance under its Decent Homes Assistance scheme to vulnerable home owners to enable them to improve their property to meet the decent homes standard. The assistance was a combination of a grant and an equity loan.
16. The maximum grant was usually £15,000. The grant element covered up to 70% of the total cost of the eligible works. The Council could also provide a loan secured by a legal charge on the property. The loan was provided interest-free for people aged 70 or older and those who were registered disabled.
17. The scope of the eligible works was:
• To address defects under the Housing Health & Safety Rating System;
• Repairs
• Amenities;
• Thermal comfort
18. The scheme had other eligibility conditions. Mrs X satisfied all these requirements.

The Ombudsman’s approach to complaints about the quality of works carried out by builders with funding from the Council

19. Generally, we expect complaints about the quality of grant-funded works to be directed to the builder. Even if a council provided the grant or loan, and approved the builder, the contractual relationship is usually between the grant recipient and the builder. We expect councils to explain this clearly in documents for the approved grant or loan assistance.

Mrs X’s application for a grant and loan

20. Mrs X completed the initial enquiry form for financial assistance in late March 2008. She met the condition of being a vulnerable resident because she was over 70 when she made the application.
21. An officer from the Private Sector Housing team inspected the property and drew up a Schedule of Works. The Schedule was sent to Mrs X in early June 2008. In the accompanying letter the Council confirmed it could consider grant assistance towards the cost of these works. The letter also said:

“As you expressed no preference for a specific builder to undertake the works, one will be appointed on your behalf from the Council’s current list. A further visit will then be arranged to introduce you to your builder…”

22. In mid-July 2008 a firm of building contractors sent the Council an estimate for the works in the schedule.
23. In late July 2008 Mrs X completed the full Decent Homes Assistance application form. She asked the Council’s Home Improvement Agency (HIA) to act as her agent and handle the application on her behalf. She asked the Council to pay any grant direct to the builder. She also applied for an equity loan.
24. The works were briefly summarised on the form as:
• Renew central heating system;
• Re-site kitchen;
• Remove rear chimney breasts through to roof; and
• Other essential repairs
25. Mrs X signed a separate form authorising the Council’s HIA to make arrangements for the works to be carried out in accordance with the Schedule of Works. By signing the form Mrs X confirmed she had understood and agreed to the following statements:
• I understand that I will be liable for any cost over and above that covered by the Assistance Scheme.
• The city council will not be liable for any injury or damage to the property and persons caused or by reason of the carrying out of work unless such injury and damage to property and persons is due to the negligence of the city council.”
26. In early August 2008 Mrs X confirmed she wanted to apply for an equity loan. The Council approved a loan of £11,349.73 and placed a legal charge on the property.
27. In mid-October 2008 the Council sent Mrs X the formal grant approval notice and letter. It approved a grant of £16,718.76 which included the sum of £2,138.37 for the HIA fees. It confirmed it would assist Mrs X with additional works to the value of £3,767.77 which were not part of the grant package. It reminded Mrs X she was liable for any additional costs incurred in carrying out works she had requested which were not part of the financial assistance package.
28. The grant approval notice was enclosed with the letter. It included the following disclaimer:
• “It is important to remember that you are employing the builder, not the Council. This still applies if you are using the Home Improvement Agency Service and a builder was obtained on your behalf.”

The notice also reminded the applicant that it was his or her responsibility to clear belongings from the area before the building work starts.

29. The summary of grant conditions enclosed said:

“It is a condition of grant that the eligible works are carried out within 12 months from the date of approval of the application. This period may, however, be extended by the Council if they think fit, particularly where they are satisfied that the eligible works cannot be, or could not have been, carried out without carrying out other works which could not have been reasonably foreseen when the application was made”.

Building works start in 2009

30. The original building contractors started work in early February 2009. Mrs X was not satisfied with the standard of their work and they left the site in March 2009.
31. Another firm of building contractors started remedial works but they too left the site in August 2009.
32. Mrs X says the building contractors left her home in a very poor condition. New builders cannot remedy the defects until she resolves the dispute with the Council about the latest version of the Schedule of Works. Mrs X engaged and paid for another firm of builders to do urgent repairs in the rear bedroom in 2015. Apart from that, no further work has been done since 2010.
33. There has been protracted correspondence between Mrs X and Council officers over several years. Mrs X wants the Council to issue a new Schedule of Works and reimburse her costs. The costs she claimed for include scaffolding, a charge to install a new gas meter, fitting a new mullion to a bedroom window, new flooring and new taps. Mrs X said she also paid to complete tiling in the bathroom because the building contractor left without finishing the job. She says if she had not done this, she could not have used the bathroom. Mrs X says the Council lost the receipts and invoices she submitted.
34. The Council registered two separate complaints from Mrs X in early 2019. One was about the dispute over the Schedule of Works. The other complaint was about the amount the Council had offered Mrs X to reimburse costs she had incurred.
35. The Council completed the final stage of its complaints procedure in May 2019. Mrs X then complained to the Ombudsman.

The Council’s comments

36. The manager in the Private Sector Housing team who handled Mrs X’s case in 2009 left the Council in 2010. His successor left the Council in 2018. The Council ended the discretionary grant scheme several years ago.
37. The Council says it is difficult for the current manager to verify some statements Mrs X made about undertakings given by previous managers. It says these were verbal and there are no written records. The passage of time also makes it difficult for Council to investigate issues about work done by the original building contractors who left the site in March 2009.
38. The Council says it has tried to resolve Mrs X’s concerns. It arranged a meeting with Mrs X in August 2018 at the Civic Centre which the manager of the Private Housing Service attended. A new Schedule of Works was drawn up then. The manager then left the Council. There was a site meeting in January 2019 to try to establish which items Mrs X says had previously been agreed were ing from the latest Schedule of Works. It says Mrs X could not identify the missing items. It had previously paid for an independent surveyor (chosen by Mrs X) to draw up a schedule of works but Mrs X challenged it.
39. The Council emphasised that Mrs X had employed the building contractors and the Council was not a party to the building contract. All its grant notices and documents clearly state that the grant applicant employs the builder, even when the HIA has selected the builder on behalf of the applicant.
40. The Council made Mrs X a final offer in February 2019 to try to settle the complaint. It agreed to pay £2,464.54 to cover costs she had incurred in addition to the original grant. It also agreed to pay interest at the Consumer Price Index rate.

Mrs X’s desired outcome

41. Mrs X says her problems with the Council started ten years ago and have continued ever since. She considers it is essential for the Ombudsman to investigate events from 2008 onwards.
42. Mrs X wants the Council to provide a revised Schedule of Works and appoint a suitably qualified and competent builder to complete all the outstanding work.
43. She wants the Council to take the following action:
• provide the itemised list she gave officers in a meeting in August 2018;
• give her a breakdown of the invoices and receipts it has agreed to reimburse;
• pay interest on the sum it has agreed to reimburse for her costs and compensation for living for ten years in unsatisfactory housing conditions.

Analysis

44. The grant approval documents the Council sent to Mrs X clearly state it is not liable for any damage to the property by the builders. They also explain that Mrs X would be employing the builders even if the HIA selected them from the Council’s list on her behalf. Mrs X signed a document confirming she had understood and accepted this declaration.
45. In view of the statements in the grant approval documents, I do not consider the Council is responsible for any defective work, or damage to the property, by the building contractors. They were not acting as the Council’s agents when they carried out this work.
46. Mrs X has complained about the Council’s actions over a period of ten years. I have taken into account that the grant works have not yet been completed satisfactorily and Mrs X is still living in poor housing conditions.
47. Mrs X told me she wants the Ombudsman to investigate everything that has happened since 2008. But the 12 months time limit applies to the events before May 2018 (12 months before we received Mrs X’s complaint in May 2019). I do not consider there is a good reason to exercise discretion to investigate historic events when Mrs X knew about these matters at the time and could have complained to us sooner.
48. The Ombudsman has a general discretion about whether to start, or continue, an investigation. I considered whether to restrict the scope of this investigation and examine events since, say the summer of 2018, when officers met Mrs X and issued the revised Schedule of Works. But it would be difficult to make findings of fact about what has happened since 2018 without investigating the earlier events. For example, I do not see how we could decide whether the July 2018 Schedule of Works omitted items that were previously agreed without examining earlier versions of the Schedule and tracking the variations and changes made over time. There is an added complication. The departure of at least two senior officers involved in these events, and the fact that there are no records of some agreements Mrs X says officers made, would significantly hinder the investigation. Having considered all these factors, I do not consider we could make robust, evidence-based findings on the key facts so we should discontinue the investigation.

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Final decision

49. For the reasons given above, I have decided to discontinue the investigation of this complaint.

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Investigator's decision on behalf of the Ombudsman