Decision : Upheld
Decision date : 11 Oct 2019
The Ombudsman's final decision:
Summary: Mr B complains the Council has not decided whether to make adaptions to Mr C’s home. He says the Council has had three years to decide and not doing so has caused uncertainty and distress to Mr C’s family. The Ombudsman finds fault and recommends the Council make a decision within a month.
- The complainant, who I refer to as Mr C, is represented by an advocate, Mr B. Mr B says three years ago Mr C’s family asked the Council for adaptions to make a second bathroom in their home. He says the Council has still not decided whether it will do so. Mr B says there is a dispute between the housing team and adult social care team about who will fund the adaptions. Mr B asks the Council to decide without any further delay.
The Ombudsman’s role and powers
- 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)
- 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 the information provided and spoke to Mr B about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments.
What I found
Legislation and Guidance
- The Care Act 2014 (“the Care Act”) requires councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and, where suitable, their carer or any other person they might want involved.
- Section 2 of the Care Act says councils must provide ‘services, facilities or resources’, or take other steps which it considers will help prevent or reduce the needs of people in its area.
- Section 8 of the Care Act sets out examples of how councils may meet needs. It gives the following examples:
- accommodation in a care home or in premises of some other type;
- care and support at home or in the community;
- counselling and other types of social work;
- goods and facilities;
- information, advice and advocacy
- ‘The purpose of this is to clarify the boundary in law between a local authority’s care and support function and its housing function. It does not prevent working together, and it does not prevent local authorities in the care and support role from providing more specific services such as housing adaptations.’
- Mr C is an adult who has autism. He now lives in supported accommodation but previously lived at home with his parents and two siblings. Mr B says the family would like him to return home if possible.
- Mr C’s behaviour can be challenging. While living at home, there were times he was physically aggressive towards family members. The family only has one bathroom and Mr C would sometimes spend a long time in the bathroom. The family says this was a point of tension and stress as other members of the family could not always access the bathroom.
- In February 2016, Mr C’s father asked the Council to consider installing a second bathroom. An occupational therapist (“OT”) assessed Mr C. The OT noted that it would be difficult to make the case for a DFG as the problem was with the time, he spent in the bathroom rather than him being able to access it. She said she needed more evidence to make a case for an extra bathroom.
- In April 2016, the Council completed a care and support assessment for Mr C. The assessment noted difficulties caused by Mr C spending up to three hours in the bathroom but said the OT did not think a referral for a DFG was suitable as the problems were not with Mr C’s access to the toilet.
- Between July and September 2016, Mr C spent time in hospital for treatment under the Mental Health Act 1983. On discharge, the Council considered the request for an extra bathroom again. It said it would explore the underlying reasons behind this need and assess whether it was linked to his autism, before taking it further with an OT. The Council had further internal discussions but did not go forward with a DFG application. Its social worker did not think an application would be successful.
- Mr C’s father contacted the Council in October 2016. He reported an incident in which Mr C was aggressive towards his mother when she tried to access the bathroom. The social workers said again that the Council would look at modifying Mr C’s behaviours first.
- The social worker asked health professionals to complete an assessment of Mr C’s needs in relation to needing his own bathroom space. An email in January 2017, shows there were delays in completing this assessment. It is not clear if it ever was completed or what the result was.
- In January 2017, the Council completed another assessment of Mr C’s needs. In the assessment document it talks about the bathroom issue but says this has not been resolved as it is not clear which organisation would be responsible for funding. It says an OT is still conducting an assessment around changing behaviours.
- Mr B says Mr C’s MP wrote to the Council in January 2017 but received no response.
- In June 2017 Mr C’s parents met with the Council and again raised the request for a bathroom. A social worker advised the family the matter was with management. In the same month, the OT who did the initial assessment in 2016 sent an email outlining her position. She said she had not pursued a DFG in 2016 because she knew the DFG team was not progressing cases like his. However, a colleague had made a case for Mr C having access to his own bathroom. She asked the social care team to discuss with the DFG team whether a DFG might be possible. I have not been provided with any correspondence or documentation that suggests this was discussed with the DFG team until October 2017.
- Mr C’s father raised the issue again in October 2017. Shortly afterwards, an officer from the DFG team confirmed in an email that it was unlikely the Council would grant a DFG.
- An updated care plan for Mr C dated November 2017, says the Council has not agreed funding for an extra bathroom. It says this has resulted in Mr C physically assaulting family members when he wants to access the bathroom but cannot because others are using it.
- In December 2017 Mr C’s father sought a period of respite care for Mr C, while he went away for between three and six months. The Council could not find any respite providers that felt they could meet Mr C’s needs. Mr C went into hospital shortly afterwards due to a breakdown in his behaviour.
- In January 2018, the service manager for the DFG team emailed the social worker to say there was no option for the Council to fund a second bathroom through a DFG.
- In March 2018 the Council considered discharging Mr C to a residential home. Mr C’s preference was to return to the family home.
- In an aftercare meeting in April 2018, professionals all agreed the benefits of a second bathroom to reducing stress in the family home if he did return.
- Mr B chased the Council in May 2018 about whether it would fund a second bathroom. The Council acknowledged his email but did not give a substantive response.
- Mr C moved to a supported living residential home in July 2018.
- In August 2018, a team manager for the DFG team reviewed the matter. She felt in some of the circumstances of the case the Council might fund a second bathroom by way of a DFG on safety grounds. However, the Council did not pursue a DFG at this time as Mr C was in residential care and due to potential safeguarding concerns.
- Mr B submitted a formal complaint in September 2018. The Council asked for an extension to respond to the complaint until November 2018. In January 2019, the Council said a director wished to meet with Mr B and Mr C and would contact them to arrange a meeting. Mr B did not receive any contact so chased again in March 2019. He received a short response that did not give any timeline for conclusion of the complaint. The Council has not provided any final response to the complaint by Mr B.
- It appears the adult social care team and DFG teams have had several discussions about the funding of second bathrooms and sought legal advice on this issue. The Council does not have records of past internal correspondence, so I do not know the dates on which these discussions took place or when it sought legal advice. I have therefore not included details in the timeline above. The discussions seem to have been around the circumstances of cases such as Mr C’s, rather than specifically about his individual case.
- The Council says it is now re-assessing Mr C’s case.
- This is a complex case, where Mr C’s living situation has changed several times during the period complained about. It involves two parts of the Council working under different legislation, alongside input from occupational therapy and health professionals. I have broken the case down into the following timeframes, which represent Mr C’s changes in circumstances:
- February – July 2016
- September 2016 – January 2018
- February – August 2018
- September 2018 – present
February to July 2016
- I do not find fault with the initial assessment in February 2016. The OT has properly reviewed all the circumstances of Mr C’s case. She reached the decision not to pursue a DFG as the circumstances are unlikely to meet the normal criteria of a DFG. The OT has recorded that she would need more evidence before making a DFG referral.
- It is not my place to question a decision the OT made in her professional judgement. The OT has considered and recorded all the relevant information so there is no evidence of fault in how she reached that decision.
- The Council does not seem to have considered the possibility of funding the adaptions under the Care Act at this time. However, I do not find fault in this respect. The OT’s assessment is that she does not have enough evidence to support the need for an adaption based on the information available. That essentially means no, unless further evidence becomes available to support the need for a second bathroom.
- The decision is reflected in the following care and support assessment in April 2016. I cannot see evidence of any fault in how the Council communicated its decision to Mr C’s family at this time.
September 2016 to January 2018
- After Mr C returns from hospital, the need for a second bathroom is highlighted again, and this time supported by several professionals. It seems the OT’s and social workers involved all agree a second bathroom would be in the interests of Mr C’s wellbeing.
- I do not find fault with the Council’s decision to first explore possible changes to Mr C’s behaviour. The Council has again looked at all the circumstances of the case and made a decision, which it communicated to the family. Its decision was not to consider funding an adaption now and instead look at ways to address the underlying causes of the problem. I can see the Council has communicated its decision to the family.
- However, the Council had not received the completed assessment in January 2017. There is then a six-month gap in which it is not clear if the assessment was completed. There is no evidence the Council chased for this or considered any alternatives.
- In June 2017, when Mr C’s father raised the request again, the Council appears to have started from scratch. There is no indication it made any decisions based on the outcome of any behavioural needs’ assessment. It simply went back to ask the same questions of the DFG team. The DFG team again said it would not fund a case such as this. The Council therefore did not apply for a DFG. It indicates it then considered whether it might fund the adaption under the Care Act. However, there is no evidence it made any decision about whether it would do so. There is no evidence it provided any response to Mr C’s family.
- The Council still had not resolved the issue or reached any decision when Mr C went back into hospital in January 2018. This means in nearly 18 months the Council made no clear decisions about whether it could fund the adaption and if so how. It left Mr C’s family without any answer for nearly 18 months. This is fault.
February to August 2018
- Mr C was in hospital until July 2018. It was not clear when he would be discharged and whether he would return home. I therefore understand why the Council may have put dealing with the request for a second bathroom to the side. However, it could still have made a decision during this time, even if that decision was dependent on whether Mr C returned home.
- Mr B chased the Council in May 2018, but it did not provide a clear response. Three months later, in August 2018, the Council went back to the DFG team again, who this time indicated it might be worth applying for a DFG. However, the Council decided not to as it did not wish to disrupt Mr C’s progress in residential care and had other concerns about him returning home.
- I do not find fault with the Council’s decision in August 2018. It is clear it considered all relevant concerns and made an informed decision. However, the delays in making this decision and poor communication with the family and Mr C’s representative, again amount to fault.
September 2018 to present
- Mr B submitted a formal complaint to the Council in September 2018. I cannot see any evidence the Council has given a substantive response to Mr B since then. For some of that time the complaint has been with the Ombudsman, which may be why the Council has not responded recently. However, it was not until March 2019, eight months after he submitted the complaint, that Mr B indicated he had complained to the Ombudsman. During that time the Council said a director was going to contact Mr B, but this did not happen. It at no point has given a substantive response to the complaint. This is fault.
Consideration of Remedy
- I have found fault in the delays and the failure to decide whether to fund an adaption or how. I cannot say what decision the Council should make.
- The law does not seem to prevent the Council from funding major adaptions under the Care Act. The latest advice from the DFG team also suggests it might also be possible to fund the adaption with a DFG. However, it is the Council’s decision whether it is appropriate to apply for a DFG or to fund the adaptions under the Care Act. It is possible the Council will decide not to do either. I could only find fault with that decision if it did not consider all relevant factors in making its decision. I therefore cannot say whether Mr C has suffered a loss of a monetary benefit and cannot tell the Council to fund the adaptions.
- I can only recommend a payment to remedy the distress and uncertainty caused by the Council’s delays, poor communication and complaint handling.
- Normally we recommend between £100 and £300 to remedy distress, depending on how significant the injustice is. Where the distress is severe or prolonged, we may recommend more.
- Here, the Council had nearly 18 months to reach a decision and a further eight months to a year to respond to the complaint. It is clear the family feel the lack of a second bathroom was a key stress factor in their living circumstances and that it contributed to problems with Mr C’s behaviour and even violent confrontations in the home. The Council’s failure to make any decision or communicate this to the family has clearly caused a significant amount of avoidable uncertainty and stress over a long period of time. I therefore recommend the Council pay Mr C’s family £400 to recognise the uncertainty and distress caused.
- The question of what should happen going forward is more difficult as Mr C is now in supported living. The Council did make a decision in 2018, which was that it was not appropriate to consider an adaption at that time. The Council says Mr C’s circumstances have changed since and it will now re-assess his living circumstances. I agree the Council should re-assess the case, but it should do so without any further delay and set out clear reasons for its decision to the family and Mr B. I recommend it does so within a month of this decision.
- The Council has agreed to, within a month:
- Apologise to Mr C’s family for the delays in assessing their request for an adaption and responding to the complaint.
- Pay Mr C’s family £400 for the distress and uncertainty caused.
- Re-assess Mr C’s living situation and the request for an adaption, make a decision and communicate this with detailed reasons to the family and Mr B.
- The Council is at fault for delays in assessing the request for an adaption to Mr C’s family home.
Investigator's decision on behalf of the Ombudsman