Summary: There was fault as the Council provided confusing information to Mrs B about the direct payment and delayed paying the direct payments. There was also fault in the Council’s communication about the need for adaptations and its failure to properly assess whether adaptations or equipment to Mr C’s room were necessary to meet his needs. The Council has agreed to apologise, to pay a financial remedy and to offer an assessment.

The complaint

1. Mrs B complains on behalf of her adult son, Mr C, who lacks the mental capacity to make the complaint.
2. Mrs B complains about the confusing and contradictory information the Council provided about the direct payments which resulted in a freeze of the direct payment account. She also says there was a delay in the payment of the direct payment and a delay in progressing her request for adaptations to the house and garden.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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)

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What I have and have not investigated

7. I have investigated events until September 2022 when the Council sent its final complaint response to Mrs B. However, I have referred to more recent events in relation to the adaptations when this was necessary for clarity.
8. I have investigated Mrs B’s complaint about the Council’s communications about the direct payments and its decision to stop the direct payments at certain times. I have not investigated Mrs B’s appeal relating to the provision in the EHCP as this was considered by the SEND Tribunal. I have not investigated complaints relating to the amount in the budget as this is linked to the provision in the EHCP which was subject to the appeal.

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How I considered this complaint

9. I have discussed the complaint with Mrs B. I have considered the evidence that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

Disabled adaptations

10. There is an underlying primary duty under social care legislation (The Care Act 2014) to meet the assessed eligible needs of a disabled adult.
11. Disabled Facilities Grants are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to give grants to disabled people for certain adaptations. Before approving a grant, a council must be satisfied that the works are:
• necessary and appropriate to meet the disabled person’s needs and
• are reasonable and practicable depending on the age and condition of the property.
12. DFGs are available irrespective of tenure. They may be paid to owner occupiers, private tenants and social housing tenants. Grants for council tenants are funded differently but this does not affect their ability to apply for a DFG.
13. In most cases, the first step in obtaining adaptations is to get an assessment done by an occupational therapist. This will usually be done by way of a referral to social services, either directly from a social housing landlord or from the local housing authority that is dealing with an enquiry about a DFG.
14. The occupational therapist will then decide whether and, if so, what adaptations are needed. The occupational therapist will make a report to the landlord or the local housing authority.

What happened – direct payments

15. Mr C is an adult man who has additional needs. He had an EHCP dated January 2021 with a personal budget of £55,819. Mrs B received direct payments to pay for services for Mr C. The Council agreed to pay Mrs B twice a year, rather than monthly which is the usual process.
16. Mrs B complained to the Council on 2 December 2020 and said, among other things, that no funding had been provided for Mr C’s education.
17. The Council carried out a review of Mr C’s EHC plan in March 2021 and sent the draft EHC plan dated April 2021 (personal budget: £55,819) to Mrs B on 15 April 2021. Mrs B requested changes in the provision in the EHC plan and appealed the EHC plan to the SEND Tribunal in May 2021.
18. The Council responded to Mrs B’s December complaint on 14 May 2021 and said the increase of the budget to £64,806 had been approved and the EHC plan finalised.
19. The Council carried out an annual review of the expenditure of the direct payments account from 11 March 2020 to 20 May 2021. The Council wrote to Mrs B on 21 May 2021 and said:
• It asked for further information on expenditure that did not match authorised expenditure under the EHC plan totalling £2,456.
• It confirmed that the funds from 22 March 2021 (my note: presumably funds for the financial year 2021/22) had been processed for £55,819 and would be paid into the Prepaid Financial Services (PFS) account towards the last week in May 2021.
20. On 11 June 2021 wrote to Mrs B and said it would transfer 50% of the direct payment money (£27,909) into the PFS account on that day and the other 50% would be paid in November/December.
21. Mrs B sent an email on 16 June 2021 and said she had been informed that the personal budget of £64,806 had been approved but this had not been released yet and she wanted to know why. The Council had told her that 50% of the personal budget was only £27,905 so she questioned this (as this suggested the total budget was still only £55,819).
22. The Council wrote to Mrs B on 13 August 2021 and said:
• In response to the question of £64,806, the Council said staff had been ‘advised to release the amount as the letter from [the Council officer] advised.’
• ‘The payments will be made in two instalments, 50% (£27,909) which was released in June 2021 and the next 50% will be released in November/December as detailed in the EHC plan.
23. The Council confirmed in a letter dated 29 September 2021 that 50% of the personal budget had already been paid and the remaining 50% would be paid in September.
24. Mrs B emailed the Council on 4 October 2021 and said she had received the letter dated 13 August 2021 and 29 September 2021, but was still not clear. The Council had approved the budget of £64,806, but had only released £27,909 so the remaining amount should be £36,896 (£27,909 +£8,987).
25. The Council replied on 5 October 2021 and said £27,909 was paid in June and £27,909 would be released on 5 October 2021. The team was not aware of any agreement of £64,806 and said Mrs B should check this with the SEN team.
26. The Council confirmed on 15 October 2021 that the direct payment amount was £64,806. The Council transferred an additional £8,987 into the PFS account.
27. The Council froze the PFS account in November 2021 so Mrs B was unable to transfer the £8,987 into her account.
28. The Council wrote to Mrs B on 3 December 2021 and said an error had been made and that the agreed personal budget was £55,819 as set out in Mr C’s EHC plan. A SEND Tribunal appeal was ongoing where Mrs B had requested the budget to be increased to £64,806. It would not be appropriate to agree an increase while the amount was being contested by the Council.
29. Mrs B emailed the Council on 5 December 2021 and said the Council had said the budget of £64,806 was agreed in its letter dated 14 May 2021 so she wanted to transfer the extra £8,987 from the PFS account into her account.
30. The Council emailed Mrs B on 13 December 2021 and said the budget of £64,806 was still being addressed through the appeal at the SEND Tribunal. Once the outcome of the appeal was decided, the Council would comply with an order from the Tribunal.
31. Mrs B wrote to the Council on 30 January 2022 and said she had £8,275 in her account but had invoices totalling £5,623 to pay and was expecting more invoices.
32. The Council reviewed the direct payment expenditure from 22 March 2021 to 22 March 2022 (financial year 2021/22). The review noted that there was £55,087 expenditure on activities or items authorised in the EHC plan but there was £4,120 expenditure that had not been authorised and which the SEND team had to address.
33. Mrs B’s solicitor wrote to the Council in June 2022 and threatened to issue a judicial review. She said:
• Mrs B received an additional £8,987 ‘pursuant to a contract signed with the local authority in March 2021’ but Mrs B had been unable to take the money from the account.
• Mrs B had not received the payments for 2022/23 yet and the payment was due in March 2022.
34. The Council replied and said:
• It acknowledged that it admitted giving incorrect information regarding the personal budget. This meant that the Council then had to take back some of the money in the PSF account.
• The money for 2022/23 would be paid in two payments, in July and October 2022.
35. Mrs B’s solicitor wrote to the Council on 26 July 2022 and said:
• She accepted that the EHC plan was still subject to an appeal and therefore the amount of payment may be subject to change at which time the Council should provide an updated payment schedule.
• She questioned why the payments would be made so late. Last year’s payments (for 2021/22) were made in June 2021 (despite being due in March 2021) and September 2021. Mrs B had expected the payments (for 2022/23) to be made at least in April 2022.
36. The Council responded in September 2022 and said:
• It did not really explain why the payments were so late, except to say that Mrs B moved the money from the PFS account into her account on 5 September 2022.
• In the future payments would be made by the end of April and September.
• It was concerned that Mrs B was spending the direct payments on items that were not included in the EHC plan.
37. The SEND Tribunal made its decision in March 2023.

Further information

38. The Council provided the following further information in response to the Ombudsman’s queries. It said:
• It transferred the full amount of £55,819 into the PSF account on 25 May 2021. Mrs B transferred the first half of £27,909 to Mr C’s account on 14 June 2021 and the second half on 5 October 2021.
• The PFS account was frozen on 22 November 2021 after the Council realised it had paid an extra £8,987 into the account which should not have been paid. The Council asked for the money to be repaid. This was the only money in the PFS account as the account had been emptied on 5 October 2021. The money was repaid on 9 June 2022 to the Council and the account was unfrozen.
• The Council admitted there was an error in releasing the funds for 2022/23. The Council said Mr C’s budget was the only budget that was not paid on a monthly basis and the Council did not realise that the direct payment had to be renewed on a yearly basis. The funds were released on 5 September 2022. It said there were no outstanding payments for 2021/22 or 2022/23.

What happened – adaptations

39. The background to the complaint is as follows. Mrs B lived at a different property before November 2021. On 4 August 2020, an independent OT carried out an assessment of Mrs B’s previous property and said this property was ‘unsuitable for [Mr C’s] longer term needs’ and recommended the family should be offered a house with 3 bedrooms, 2 reception rooms and a garden and she set out the adaptations that would be required.
40. In her response to the draft decision Mrs B said the independent OT assessment from August 2020 was instructed and paid for by the Council and that the Council agreed to the recommendations in the report. The Council said a payment was made to the independent OT in 2020 but could not say why the payment was made or whether it was a joint instruction. The payment had been made by the Homelessness Independence and Preventative Services (HIPS) and the relevant people in that team had left the Council.
41. The Council’s housing OT visited Mrs B’s current property on 20 August 2020 with Mrs B and other Council officers (presumably to decide whether it would be a suitable property for Mrs B to move to). The OT’s report listed the adaptations that were necessary to the property but also referred to the adaptations identified by the independent OT as necessary.
42. The Council’s housing department carried out a further OT assessment of Mrs B’s current property on 8 April 2021 and carried out the works before Mrs B moved in. Mrs B moved into her current home on 8 November 2021.
43. Mrs B asked the independent OT whether any further works were needed to the property. The independent OT wrote to the Council on 2 February 2022 and said:
• Mr C’s adapted room ‘would ideally be fitted with a ceiling mounted sensory swing to meet his sensory and self-regulation needs’ and other items.
• Mr C’s bedroom had padded walls but also needed a padded floor.
• The garden needed renovation as it was not safe for Mr C to use.
• The paved area close to the house should be covered with an all-weather canopy so Mr C could go outside even if it was raining.
• The side alleyway to the property should be widened to allow Mr C’s trike to be moved from the rear garden to the front.
44. On 18 February 2022 the Council’s Housing OT and the Council’s surveyor visited Mrs B’s property to assess the feasibility of the requested adaptations. The note of the visit said:
• Mr C used a trike in the garden but there were a lot of uneven sections in the garden which made it unsafe to ride the trike. The Council’s OT recommended the provision of a levelled patio area so that the garden would be safe for Mr C to use.
• The side alleyway was not wide enough for the trike. The Council needed advice from a structural engineer to decide whether it could be widened.
45. On 16 March 2022, the OT manager discussed the case with the OT. They were waiting for the structural engineer’s advice on the swing suitability and also asked Mrs B to provide a quote for the swing.
46. In June 2022, the Council held an internal meeting to discuss the adaptations. The Council said the installation of the swing was not approved due to the risk of harm to Mr C. A free standing swing would not be counted as an adaptation so it would not be provided by the Housing Adaptations Service.
47. On 15 July 2022 the Council wrote to Mrs B about the adaptations and said:
• The Housing Adaptations Service would not provide a swing. They only carried out structural adaptations to a house. If Mrs B wanted a swing, she would have to pay for it and would need the Council’s approval to make the necessary alterations.
• The Housing Adaptations Service agreed to carry out some works to the garden to meet Mr C’s needs. This included filling in holes in the garden, remove a patch a concrete and replace this with grass. They would also remove a very uneven paved area of the garden, level it and cover the area with a material of Mrs B’s choice.
• In terms of the side access, the technical officer would carry out a survey as it was noted that there were drains running along the side access.
• It would contact her shortly to arrange a further appointment for the technical officer to attend.
48. The Council wrote to Mrs B on 22 August 2022 regarding the adaptations as it had not received a response to its letter dated 15 July 2022. The Council said it agreed to carry out works to the garden including infilling holes, removing a length of concrete and replacing the slabbed area with a material of Mrs B’s choice. The Council also offered to send a technical officer to find out if it was possible to make a path so that Mr C could take his trike from the back garden to the front garden. The Council asked Mrs B to confirm whether she wanted to proceed with the works and said she should provide her response within 4 weeks.
49. The Council said in January 2023 that Mrs B had not replied to the letters regarding the garden works sent in July and August 2022. It is our understanding that Mrs B later replied after January 2023 and an agreement was reached in May 2023 on what works the Council would carry out.

Further information

50. The Council provided this further information regarding the adaptations. It said:
• The Council said some of the works recommended by the independent OT including the swing in the bedroom could not be provided by the Housing Adaptations Service. These works were referred to the Sensory Team, Social Care OTs and 0-25 Disability Team, but they were not able to assist.
• The Ombudsman asked the Council to provide the Care Act assessments it had carried out in relation to Mr C. The Council said it had offered Care Act assessments but Mrs B had refused them. It was the Council’s understanding that Mrs B refused the assessments because she was going through the process of applying for continued healthcare funding for Mr C from the NHS.

Analysis

Direct payments

51. There was fault in the Council’s communication about the personal budget and direct payments between May and October 2021 as the Council gave incorrect and contradictory information to Mrs B. The Council continued to do this despite repeated requests by Mrs B to clarify what the personal budget was. This was fault.
52. The Council then gave wrong information about the personal budget on 15 October 2021 as it said the budget was £64,806. It transferred the additional £8,987 into the PSF account in and did not realise its mistake until 22 November 2022. That was fault.
53. The Council then froze the account as it realised it had overpaid the PSF account.
54. There was then further fault in the delay in the Council’s payments for 2022/23. The Council should have paid the next 50% of the 2022/23 direct payments in March/April 2022, but did not pay until September 2022. The Council said this delay was human error.
55. I have considered the injustice Mrs B has suffered from the fault. I note that, during most of the time of the poor communication regarding the budget, Mrs B continued to send emails to the Council asking it to confirm what the budget was so Mrs B knew that the matter was not settled yet. Also, Mrs B knew that her appeal at the SEN Tribunal had not been decided yet and she knew that the budget could only be decided once the provision in the EHC plan had been decided. So she would not have known what she could spend the budget on, even if she had thought that the increase in the budget had been agreed.
56. Therefore, the main injustice, in terms of the poor and confusing communication, was distress and uncertainty.
57. In terms of the freezing of the account in October 2021, the initial injustice was minimal. Mrs B was in the unusual position that she received the direct payments twice a year in advance. Mrs B transferred all the money from the PFS account to her account in October 2021 so she would not have been affected by the fact that the PFS account was frozen for the next six months, until March 2022.
58. However, the Council should have released the first half of the 2022/23 money in March/April 2022, but did not do so until September 2022. That would have caused a real injustice to Mrs B as she was unable to pay for Mr C’s services. I understand Mr C continued to receive services, but I accept that Mrs B would have suffered a lot of stress and anxiety from being chased for outstanding invoices.
59. In terms of remedy, I recommend the Council pays Mrs B £250 for the distress and anxiety caused by the late payment of the direct payments.

Adaptations

60. The Council paid for the independent OT report on Mrs B’s previous property dated 4 August 2020. The Council then found Mrs B’s current property and the Council’s OT carried out an assessment of this property on 20 August 2020.
61. There was then poor communication by the Council in what adaptation works it would carry out. The report dated 20 August 2020 gave a list of necessary adaptations but also still referred to the report from the independent OT of 4 August 2020. The Council should have made it clear that any proposed adaptation works on the new property would require approval by its own OT but did not do so. This was fault.
62. Mrs B then asked the independent OT to make recommendations for further adaptations. The Council received the request on 2 February 2022. I will address the structural works to the garden and the request for the sensory bedroom separately.
63. The Council’s OT and surveyor visited Mrs B’s home on 22 February 2022. In terms of the works to the garden, the Council progressed matters. The OT noted which works were necessary and which works were not. The surveyor attended the initial visit. The Council then obtained further advice from a structural engineer on some of the works. There was some delay between March and June 2022, but by July 2022 the Council made a proposal to Mrs B for the works. Mrs B replied in January 2023 and the Council and Mrs B progressed the works. So overall, there was some delay between March and June 2022, but, apart from that, the matter was being progressed.
64. However, there was fault in the Council’s approach to the request for the sensory bedroom adaptations. It is unclear from the documents I have read whether the Council assessed whether any further works or equipment to Mr C’s bedroom were necessary to meet Mr C's needs, which would be the first step of any decision making.
65. The minutes of the original visit on 22 February 2022 were silent on the question of Mr C’s bedroom so it is not known whether the Council’s OT thought that any further works were necessary or not to meet Mr C’s needs. However, the Council then seemed to progress the request for the swing as it asked for a structural engineer to advise on the swing and asked Mrs B to provide quotes. This suggested that the Council thought the swing was necessary.
66. The Council then wrote to Mrs B and said its Housing Department could not pay for the swing so she would have to pay for it herself. That was not quite correct. If equipment or an adaptation was necessary to meet a person’s needs under the Care Act 2014 then the Council had a duty to provide it, although I accept it may come from a different Council budget.
67. Mrs B was then advised to try different departments (Sensory Team, Social Care OTs and 0-25 Disability Team) but they all refused to fund any equipment. But again, it was not clear, from the evidence that the Council has sent me whether these departments refused the equipment because it was not necessary to meet Mr C’s needs or for another reason.
68. However, I do accept that the Council has offered an assessment of Mr C’s needs under the Care Act 2014 which Mrs B then asked to postpone. It does not appear that the Council explained that this assessment could also affect the Council’s duty to meet Mr C’s needs in terms of equipment and adaptations.
69. In terms of his injustice, I recommend the Council offers Mrs B an assessment by a social worker or an OT to determine whether any further adaptations or equipment is necessary to meet Mr C’s needs for care and support.

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Agreed action

70. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Mrs B for the fault I have identified.
• Pay Mrs B £250.
• Offer an assessment of Mr C’s needs for adult social care support and carry out the assessment if Mrs B agrees. This should include an assessment by a social worker or an OT to determine whether any further works or equipment are necessary to meet Mr C’s care needs under the Care Act 2014

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Final decision

71. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman