The Ombudsman's final decision
Summary: Miss X complains about the Council’s handling of her application for exemption of building regulations fees. Miss X also complains the Council failed to consider its duties under the Human Rights Act and Equality Act 2010. We found no fault by the Council and we have concluded our investigation.
The complaint
Miss X complains about the Council’s handling of her application for exemption of building regulations fees. She says the Council failed to consider its duties under the Equality Act 2010 as it failed to provide reasonable adjustments. She says the Council also denied her Human Rights to comfort, health and safety in her home.
Miss X says the Council put up barriers and would not provide any information as to where she could obtain information to support her application. Miss X says the Council’s actions caused her avoidable distress and led to delays in her building work being carried out.
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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) We cannot decide if an organisation has breached the Human Rights or Equality Acts; this can only be done by the courts. But we can make decisions about whether an organisation properly took account of an individual’s rights and its duties in its treatment of them.
If we are satisfied with an organisation’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 reviewed Miss X’s complaint correspondence and the information she provided.
I made enquiries to the Council and considered the information it provided.
I considered relevant legislation and guidelines and the Council’s policies and procedures.
Miss X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
What I found
Legislation and guidance The Building (Local Authority Charges) Regulations 2010 (the Regulations) sets out the conditions under which local authorities may or may not charge building regulations fees.
The Regulations say local authorities will not recover charges where the application relates to an existing property permanently occupied by a disabled person, and where the work is solely: For the purpose of providing means of access for the disabled person to enter or exit the property, or For the purpose of providing accommodation or facilities designed to secure the greater health, safety, welfare or convenience of the disabled person. (Building (Local Authority Charges) Regulations 2010, 4(1)(b)) The Regulations say that when considering if the accommodation or facilities fall within the definition referred to in 4(1)(b), as above, local authorities need to satisfy themselves the work consists of “the adaptation or extension of existing accommodation or an existing facility… where the existing accommodation or facility could not be used by the disabled person or could be used by the disabled person only with assistance”.
The Council’s Scheme for the Recovery of Building Regulation Charges and Associated Matters sets out the Council’s policy for determining whether building regulation charges are payable. The Council’s scheme reflects the criteria as set out in the Regulations.
The Equality Act 2010 protects people from discrimination arising from disability. It says councils should make changes or adjustments to enable people with disabilities to receive the same services as others, to ensure they are not disadvantaged.
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities, and other bodies carrying out public functions, to respect and protect individuals’ rights.
What happened This chronology includes key events in this case and does not cover everything that happened.
Miss X submitted a building control fee exemption request to the Council in August 2021 regarding a disabled accessible extension to the rear of her property.
On receipt of the application, the Council asked Miss X to provide proof of her disability. It also asked for confirmation that the purpose of the new extension was to secure greater health, safety and welfare or convenience. The Council said such evidence typically consists of a letter from a doctor. It said it required this information to satisfy itself the proposed building work was to existing accommodation and facilities that could not be used due to disability or without assistance.
In September 2021, Miss X provided the Council with evidence of her Personal Independence Payment (PIP) as proof of her disability. Miss X told the Council building regulations state applicants must be disabled to qualify for fee exemption. She said applicants may need to provide one piece of evidence as proof of disability, to which she had supplied proof of her disability benefit. Miss X asked the Council to make a reasonable adjustment by providing lengthy documents such as letters to her by post.
The Council replied and told Miss X it accepted she had a disability but said it required further information. It said local authorities must satisfy themselves applications met the requirements of the Regulations. The Council asked Miss X to provide clarification that the adaptations and extension to her property were because the existing accommodation and facilities could not be used or could only be used with assistance. The Council provided an extract of the Regulations to clarify its request and said the information it required could be a letter from Miss X’s doctor.
Miss X replied and said it was the Council’s job to carry out the assessment and satisfy itself in line with the Regulations, without putting unnecessary work onto the NHS. Miss X said it was not the NHS’s job to carry out this work. Miss X said she did not know how the Council expected a doctor to know if the adaptations and extension to her property were being carried out because her existing accommodation could not be used, or only with assistance. Miss X said the Council should employ its own doctors if it wanted a doctor’s opinion and said the Council could carry out a visit to her home if it wanted to assess her house.
The Council replied to Miss X. It said it had not stated she must provide a letter from her doctor but said it had suggested a form of evidence which the additional information may take. The Council suggested Miss X may have a support worker or other professional person to consider whether the adaptations and extension were needed in line with the requirements of the Regulations. The Council said it remained Miss X’s responsibility to provide additional information so the Council could determine whether the requirements of the Regulations were met. It told Miss X it could not process her application any further until she either paid the fee or it received the additional information. The Council provided Miss X with information on how to make a complaint.
Miss X replied to the Council on the same day and said the evidence she had already provided would satisfy any other authority. Miss X again asked the Council how it expected a doctor to know whether the adaptations and extension were being carried out on the basis that her existing accommodation and facilities could not be used or only with assistance. Miss X said a doctor would need to carry out a home visit to assess this and said they had not been trained to do so. Miss X said her doctor had refused to write such a letter and said the Council were exploiting the system so that disabled people were required to pay.
The Council replied and asked Miss X if she wished to raise the matter as a formal complaint.
Miss X’s complaint Miss X’s father, Mr Y, responded on her behalf on 28 September 2021 and confirmed Miss X wanted to make a formal complaint. Mr Y acknowledged the Council told Miss X it did not have to be a doctor assessing the extension but said the Council had only asked for a doctor’s letter. He said the Council wanted doctors to look at plans, do home visits and write letters stating they considered the adaptations and extension were needed. Mr Y said the Regulations did not state the NHS or other agencies should assess the application and said this was the Council’s responsibility. He said the Council had discriminated against disabled people with its unreasonable demands and said other local authorities only required one piece of evidence such as PIP.
The Council acknowledged the complaint on 1 October 2021 and set out the points of complaint.
Mr Y replied on 6 October 2021 and said he considered the Council had not understood Miss X’s complaint. He said the Equality Act requires service providers to take such steps as it is reasonable to have to take to avoid putting disabled people at a substantial disadvantage. He said no other council requires a doctor or social services to assess building control plans for it to be satisfied. Mr Y said the Council was treating Miss X differently to other disabled people in the rest of the country because building regulations only ask for proof of disability. Mr Y said Miss X had provided this.
The Council replied on 11 October 2021. It said it considered the Council had already summarised the additional issues raised by Mr Y in its acknowledgement provided on 1 October 2021. It said it considered the additional information was more detail as to why Miss X felt the Council should not be asking her to provide additional information.
The Council carried out an inspection of the works undertaken at Miss X’s home on 13 October 2021.
The Council’s complaint response The Council provided its complaint response on 29 October 2021. The Council referred to the requirements of the Regulations and said it required proof of disability and proof the proposed works were required for the disabled person to continue living within their existing dwelling to be reasonably satisfied the exemption applied. The Council said such proof may be an occupational therapist’s report, a letter from a doctor, or the grant reference number for any Disability Facilities Grant (DFG) for the works. It said applicants could not use proof of disability benefits alone to claim fee exemption and said other authorities also required evidence from health professionals to support such applications. The Council said Miss X may seek assistance and further advice regarding this from a disability rights organisation.
The Council said it had carried out an inspection of the works at Miss X’s home earlier that month to avoid any delays while the issue of the fee remained under review. It said it would not carry out any further inspections unless Miss X provided satisfactory evidence to support her application or paid the fee.
Miss X responded on 17 November 2021. She said building inspectors should assess properties to determine if the fee exemption was satisfied. Miss X said the Council already had evidence to know what her disability was, and this should therefore satisfy it that the adaptations were appropriate. Miss X said the Council told her it needed proof the proposed works were required for her to continue living in the property but said it had not told her where to obtain this information from. Miss X said the Regulations do not state it is the responsibility of the disabled person to provide the information requested by the Council.
The Council replied to Miss X on 26 November 2021. It said it had provided its complaint response and had concluded its consideration of the complaint. It maintained that unless Miss X provided satisfactory evidence for fee exemption, or paid the fee, it would not carry out any further inspections. The Council said it required further evidence for it to consider Miss X’s application further. It provided a link to a website which it said offered advice about disability rights organisations who could potentially help Miss X in obtaining information from medical specialists. The Council referred to the points raised in Miss X’s letter of 17 November 2021 and said it did not consider any further communication on these matters would provide the outcome Miss X wanted. The Council told Miss X to refer her complaint to us if she remained dissatisfied.
What happened next Miss X contacted her MP in December 2021 to tell them about her application and the Council’s response.
The Council replied to the MP’s enquiry and said it had responded to Miss X’s complaint. The Council said it had provided Miss X with a copy of its Scheme for the Recovery of Building Regulation Charges and considered it reasonable to request evidence to apply the exemption.
On 20 December 2021, Miss X asked the Council to consider her fee exemption based on a previous DFG application.
Miss X contacted the Council on 5 January 2022. She said the Council had failed to make reasonable adjustments in line with the Equality Act and had placed the burden of enforcement onto her. She said the Council had also failed to use the information from her previous DFG application as part of her fee exemption request and said she considered the Council had discriminated against her.
At about this time, Miss X brought her complaint to us.
The Council wrote to Miss X on 14 January 2022. It said its records showed Miss X applied for a DFG in 2011 but then later instructed the Council to cancel her application in 2013. The Council said it held no information which altered its opinion in relation to her fee exemption application. The Council said it encouraged Miss X to provide the requested information if she wished the Council to consider her for exemption.
Miss X replied on 18 January 2022 and said the Council had refused to answer her questions. She said the Council had refused to tell her what type of information she needed to provide, who carried out the type of work referred to and where to go to obtain the evidence. Miss X said the Council had approved her DFG application and said the Council could use this as evidence to satisfy her fee exemption request.
The Council wrote to Miss X on 20 January 2022 and said Miss X’s DFG application related to works which were different to the current works undertaken. It said the DFG application was therefore not relevant to the fee exemption request.
Miss X paid the building control application fee on 24 January 2022.
Analysis To waive the building regulations fee, the Council had to satisfy itself that Miss X’s application met the criteria as stated by the Regulations.
Miss X provided evidence of her PIP, and in her email dated 17 November 2021, told the Council it already had evidence to know what her disability is for it to be satisfied the adaptations were appropriate. However, the Council says proof of disability benefits alone cannot be used to claim fee remission. The Council says the Regulations state for the exemption to apply, it must be satisfied “the adaptation or facility is designed to secure greater health, safety, welfare or convenience where the existing accommodation or facility could not be used by the disabled person or could be used only with assistance”.
I acknowledge Miss X’s comments that she provided evidence of her disability. However, proof of PIP does not explain or confirm how the adaptations provided by the building works secures greater health, safety, welfare or convenience for Miss X. In addition, the Regulations do not specify how many pieces of information councils may request for them to satisfy themselves the criteria are met. On this basis, I find the Council is not at fault for requesting additional information.
Miss X says the Council did not provide reasonable adjustments for her and that it put up barriers during the application process. I acknowledge Miss X’s comments and her view that the Council should have visited her property to satisfy itself the building works met the eligibility criteria for exemption. However, it may not be possible for a building inspector to identify whether proposed building works were undertaken “where the existing accommodation or facility could not be used by the disabled person or could be used by the disabled person only with assistance”. This determination requires knowledge of the disabled person’s disability and health conditions and their ability to use their existing accommodation. I therefore do not find the Council at fault for requesting information regarding this matter. I acknowledge Miss X provided proof of her PIP, but this does not provide any insight into how Miss X was able, or not able to use her existing accommodation.
Miss X asked the Council to correspond with her by letter and I am satisfied the Council complied with this request. I also acknowledge the Council carried out an initial building control inspection while it considered Miss X’s complaint.
Miss X says the Council did not tell her what information it required or tell her where to get the information from. I have found no fault by the Council regarding this matter. This is because it suggested potential sources of the information it required (doctor’s letter, occupational therapist’s report or other professional or support organisation’s correspondence), and suggested Miss X seek assistance from a disability rights organisation if required. The Council also told Miss X it required evidence to satisfy itself the proposed building work met the criteria of the Regulations and provided a copy of the Regulations to support its rationale. This demonstrates the Council advised Miss X of the type of information it required, where to get the information from and the reasons for its request.
I acknowledge the Council did not specify exactly what the evidence should say. However, the Regulations do not specify exactly what is required for councils to satisfy themselves the criteria are met. It is therefore up to each individual council to decide what evidence it needs to satisfy itself in this regard. The Council’s email of 26 August 2021 asked Miss X to provide proof of disability and confirmation, typically a letter from a GP, to support the purpose of providing the new extended accommodation and facilities. The Council therefore provided guidance to Miss X about the type of evidence it required. I acknowledge Miss X says doctors and other professionals such as occupational therapists (OT) are not trained to assess building control plans or properties. I also acknowledge Miss X says her doctor and an OT refused to carry out such an assessment in support of her application. I have seen no evidence the Council advised Miss X it required a doctor or another professional to assess the building plans or the property. The evidence shows the Council asked Miss X to provide a letter to support her application. I consider this is in line with the Building (Local Authority Charges) Regulations 2010.
Miss X says the Council approved a DFG application but failed to use this as evidence for fee exemption. In its response to my enquiries, the Council said Miss X applied for a DFG in 2011, but this was for different adaptations to those currently undertaken. As a result, the Council says the DFG did not satisfy the fee exemption request. I acknowledge Miss X disputes this explanation. However, the Council says it did not grant the DFG because Miss X cancelled her application. The Council has provided evidence Miss X decided not to pursue the DFG application in 2013. On this basis, I have found no fault by the Council regarding this matter.
Final decision
I have found no fault by the Council and have concluded my investigation.
Investigator's decision on behalf of the Ombudsman