Decision : Upheld
Decision date : 18 Dec 2018
The Ombudsman's final decision:
Summary: Mrs Y complains about the Council’s actions in relation to a Disabled Facilities Grant provided for her disabled son, X. The Ombudsman finds the Council failed to advise and signpost Mrs Y at the beginning of the process, leaving Mrs Y to oversee the build. The Council then made the final payment to the contractors, despite receiving confirmation from Mrs Y that works remained outstanding. The fault has caused injustice to X because the accommodation does not fully meet his identified needs. The Council will update its written procedures, and pay £2,000 to X and £500 to Mrs Y for the injustice caused by the fault identified.
- The complainant, whom I wil call Mrs Y, says:
- the Council delayed significantly in assessing her application for a Disabled Facilities Grant (DFG) for her son, whom I will call X.
- the Council authorised payment to the contractors responsible for completing the DFG works, despite concerns she raised about the quality and appropriateness of the works carried out.
What I have investigated
- I have investigated the actions of the Council from March 2016. This is because the DFG completed in late 2017 and within twelve months of Mrs Y’s complaint to the Ombudsman. I do not consider it was reasonable for her to have complained about the quality of the works sooner.
- I have not investigated the actions of the Council or the County Council between 2014 and 2016 for the reasons explained at the end of this statement.
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)
- 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
- During my investigation I have:
- Discussed the complaint with Mrs Y and considered any information she submitted;
- Made enquiries of the Council and considered its response;
- Consulted the relevant law and guidance around Disabled Facilities Grants;
- Issued a draft decision and considered any comments received before making a final decision.
What I found
- A Disabled Facilities Grant (DFG) is awarded by the housing authority to make adaptations to the home which are ‘necessary and appropriate’ to meet the disabled occupant’s needs, where it is ‘reasonable and practicable’ to carry out such adaptations. Usually the housing authority relies on the opinion of an Occupational Therapist (OT) to decide what is ‘necessary and appropriate’.
- The ‘Housing Grants, Construction and Regeneration Act’ (1996) sets out how councils should consider DFGs. Section 34 places a duty on local authorities to notify an applicant of its decision on an application as soon as reasonably practicable, and in any event within six months of the date of the application.
- ‘Home Adaptations for Disabled People: a detailed guide to related legislation, guidance and good practice’ (2013) (‘the guidance’) sets out the recommended target timescales for each stage of the DFG process:
- Stage 1 is from the initial enquiry at the first point of contact to the OT referral. Their recommendations are provided to the adaptation service
- Stage 2 is from the OT recommendation to approval of the scheme
Relevant law and guidance – payment of grant and monitoring of works
- When funding for a DFG is approved, the Council may decide to pay the grant directly to the contractor responsible for completing the agreed works. An information booklet produced by the government in 2007 entitled ‘Disabled Facilities Grant’ advises applicants that any decision made by the Council to pay the contractors directly “… should not affect your right to ensure that the contractor has completed the works to your satisfaction. If the contractor has not, you should notify the council so that they can withhold payment, if appropriate”.
- The guidance also makes clear that councils retain responsibility for assessing the appropriateness of DFG works. During the build, the guidance says:
“All major adaptation work needs to be visited by a supervising officer at least once whilst they are in progress and where work continues beyond a week, more often. The Occupational Therapist would also undertake a site visit to advise on the installation or arrangement of key elements of a major adaptation before that work is undertaken. In all visits the disabled person and carer should be involved and given an opportunity to comment on the progress of the work and raise any difficulties or queries. Such involvement can prevent wasted time and may identify issues of appropriateness or suitability that had not been identified earlier that would need to be considered with occupational therapy staff.”
- On completion of the works, and before making the payment, the guidance says councils should visit the property again to consider:
- the appropriateness of the adaptation and whether it meets the agreed needs of the disabled person and any other recommendations identified
- the way in which the work was carried out
- whether all the required work is fully completed to the standard specified
- in the case of equipment, that it is fully operational and the disabled person is able to use it.
- Mrs Y’s son, X, is 20 years old and has various chronic medical conditions. He lives at home with his parents. Mrs Y is X’s main carer. Mrs Y says that X is in constant pain and has difficulty mobilising inside and outside of the home. He often uses a wheelchair, and so it is crucial that X has accessible living space. It is for this reason Mrs Y applied for a DFG.
- The Council received contact in February 2016 from an OT in the neighbouring County Council. The OT outlined X’s needs and suggested a joint visit to decide whether a DFG was necessary to meet those needs. The OT wrote to the Council again in March to reiterate that X may require a DFG. Mrs Y subsequently submitted her application on 21 March 2016. As the law sets out, the Council had six months from this point to determine the application.
- On 29 March the Council received a formal referral from the OT requesting an assessment for X. The notes on that referral form indicate that the County Council had been aware of X’s needs since 18 March 2014. The Council then visited the home address and wrote to the family in April to confirm a schedule of works to be considered for grant aid. The Council copied the letter into the family’s chosen Home Improvement Agency (HIA) and the OT.
- The HIA responded in August to provide the plans agreed by Mrs Y. The HIA asks the Council to sign the “approval to proceed to tender”. The Council conducted a further visit in November 2016, and the HIA submitted a second set of plans. The Council subsequently agreed funding in February 2017.
Quality of work
- Mrs Y says the quality of work is so poor that X cannot use the home safely. For example, Mrs Y describes how the kitchen is unusable, as is the new bathroom which X cannot access during bed weather due to his sensory processing disorder. The Council says it was only made aware of X’s sensory disorder after completion of the works. Mrs Y also describes how X’s bedroom is unfinished and inaccessible and that X currently sleeps on a mattress on the floor. The Council says it has witnessed X’s living arrangements and says this is not true.
- The Council arranged its own survey of the completed build, as did Mrs Y. Both surveys reveal several problems. I will not itemise all of these. However it is important to note one particular area of concern; the timber lintels used above X’s bedroom. Mrs Y says this has undermined the structural safety of this part of the house, therefore meaning that she cannot obtain building control sign-off. The problem regarding the lintels is echoed in both surveys, however the Council says further testing is required to confirm compliance and structural safety.
- The Council notes the impact of the County Council’s termination of a contract with the HIA commissioned to project manage the DFG build. The Council points out that the agency had the necessary funds to fulfil its contact with Mrs Y, but that it chose to withdraw. The Council also says that 50% of the fee was refunded to Mrs Y.
- Following the termination of that contract, Mrs Y says she had no other option but to oversee the DFG build herself and without the support of an agent. She says this was not through choice, but necessity. The Council says it verbally encouraged Mrs Y to commission a new HIA, but it has no evidence of this discussion. Mrs Y denies that discussion took place, and instead says the Council left her to manage the build. The Council says Mrs Y had the option to use the fees refunded by the previous HIA to appoint a new agent, but chose not to. As a result, there was no clear arrangement between the Council and Mrs Y to outline who was responsible for what, and how and when the Council would release funds.
- The files show that Mrs Y spent significant time and trouble trying to resolve the matter, but with little success. As one example, Mrs Y arranged a joint meeting at her home address with the contractors and a Council officer in October 2017. When the contractors failed to attend, Mrs Y telephoned to enquire. Mrs Y says the contractors told her that they had received contact from the Council officer advising them not to attend. The Council now accepts that this was incorrect, and the officer in question should not have intervened as the meeting was one arranged by Mrs Y.
- The Council acknowledges that some building work remains outstanding at Mrs Y’s property, but the extent of that work has not yet been agreed. In response to Mrs Y’s initial complaint, the Council described the outstanding works as “snagging” however, after inspecting the works, the Council now accepts that the remedial work is significant in scale and cost.
- To clarify the exact extent of those works, the Council appointed a new HIA in June who visited Mrs Y’s property. Following that visit, the Council provisionally agreed to use the HIA to oversee and manage “outstanding and/or inadequate works…”. However, before completing any works, the Council asked Mrs Y to sign a confidential settlement agreement dated 18 July 2018. This was after the Council had prepared a draft schedule of works. Mrs Y says the Council did not discuss the agreement with her. Mrs Y has shared a copy of that agreement, the full terms of which are as follows:
- The offer is made entirely without any admission of liability by the Council
- The offer will be in full and final settlement of any causes of action whatsoever you may have against the Council arising out of the above
- You will allow the Home Improvement Agency Contractor and building contractor access to your property at all reasonable times to undertake the agreed works
- This offer and the terms of the settlement within it, as accepted by yourselves, supersedes any other agreements between the Council and yourself
- The terms of this offer and any acceptance thereof is to be kept confidential by yourself and is not used for any collateral or other purpose.
What was the injustice caused by the Council’s actions?
- The Council says that it is not responsible for much of the delay evident in this case. This is because the Council argues the responsibility for progressing the scheme was with the family, their OT and the HIA. For the Council to approve the grant, it required a schedule of works developed and agreed by the OT.
- Following their assessment, the OT agreed on 16 March that adaptations were necessary and appropriate to meet X’s needs. The OT suggested a joint visit with the Council to decide what work was reasonable and practicable. That visit went ahead approximately five days later. The Council agreed to consider grant aid in a letter dated 12 April. From this point, it was the responsibility of Mrs Y and her HIA to agree upon a schedule of works in agreement with the OT.
- The Council then received a schedule of works and associated plans from the HIA in August 2016. The delay between April and August cannot therefore be attributed to the Council.
- For reasons unknown to me, that schedule of works was not approved. The HIA submitted a further schedule in November 2016 and the Council approved funding for those works on 8 March 2017. The guidance suggests that ‘stage two’ of the process, which covers the period from the OT’s recommendation to approval of the scheme, should take no longer than 50 working days. While the earlier delay cannot be attributed to the Council, I consider the time between the agreed schedule of works and approval of the scheme lies with the Council. There are no notes or records to explain the reasons for this delay, which amounts to 35 working days. The Council will remedy the effects of that delay with the actions listed at the end of this statement.
Quality of works
- The Council is not the clerk of DFG works, and so it cannot be held directly responsible for any of the contractor’s wrongdoings. However, the Council does have overarching responsibility to ensure that the completed works meet the necessary standards before issuing payment to the receiver. The Council acknowledges it failed to follow its own procedure which confirms that customer sign-off is required before issuing the final payment. The Council says the officer has been subject to disciplinary action.
- In this case, although Mrs Y should not have been responsible for the technical sign-off of the works, she made it very clear to the Council that she was not happy with the works; they were of a poor standard and did not meet X’s identified needs. Furthermore, Mrs Y has the continuing worry that the works are potentially unsafe because building control sign off remains outstanding. These problems were undoubtedly exacerbated by the lack of a HIA. While the termination of the initial HIA was outside of the Council’s control, the Council does accept it should have done more to signpost Mrs Y to alternative agencies. Despite this, the Council made its final payment to the contractor in November 2017 without the approval of Mrs Y. This is fault.
- The impact of that fault is significant. Firstly, it meant that Mrs Y has expended considerable time and trouble in pursuing the matter with the Council, and then the Ombudsman. Secondly, and more importantly, X has lived in unsuitable accommodation for longer than necessary, causing significant and avoidable distress.
- In response, the Council says that it offered to undertake remedial work in July, and so the timescales are not as prolonged as the Ombudsman suggests. The Ombudsman welcomes the Council’s proposal to rectify the works, however we do not agree that those works should be conditional on the terms set out. Whilst I appreciate there may be some legal implications should Mrs Y seek recourse from the builder, I consider this could be discussed with Mrs Y and resolved with a letter setting out those implications.
- The injustice identified could have been avoided had the Council inspected the build before making the final payment. As the recent surveys demonstrate, a final inspection would have revealed many problems with the build. This would have provided grounds to withhold payment pending rectification of those problems. Making the final payment removed any bargaining power Mrs Y had.
- Within four weeks of my final decision, the Council will:
- Meet with Mrs Y and the HIA to agree upon a schedule of works. The Ombudsman will not specify what the schedule should contain; however, the Council should have regard to the original schedule of works and the subsequent surveyors’ reports. The Council has also agreed to consider additional works to the bathroom ceiling to overcome the impact on X’s sensory disorder. The Council will ensure any agreed schedule of works is implemented without delay and in accordance within the good practice timescales;
- Pay £2,000 to X. This payment is in line with the Ombudsman’s guidance on remedies, which suggests a payment in the range of £150 to £350 for each month during which a person has remained in unsuitable accommodation due to council fault. Had the Council identified the outstanding works in November 2017 before making the final payment, it could have arranged for completion of those works within 80 working days. This is the timescale outlined in the good practice guidance. Taking these timescales into account, along with the initial 35-day delay, X has been in unsuitable accommodation for 8 months longer than necessary. The Council should take timely action to prevent any ongoing injustice;
- Pay £500 to acknowledge the avoidable distress, time and trouble Mr and Mrs Y have spent in pursuing this matter since October 2017.
- Provide evidence to the Ombudsman that it has adopted a written procedure to be shared with DFG receivers, setting out the roles and responsibilities of each party in the DFG process.
- I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. That injustice is suitably remedied with the actions listed above.
Parts of the complaint that I did not investigate
- I have not investigated the actions of the neighbouring County Council because it is not the body in jurisdiction in relation to this complaint. Mrs Y complains about delay between 2014 and 2016. Based on the evidence I have, I cannot say this delay lies with the Council. While the County Council may have identified a potential need for a DFG in 2014, there is no evidence that it passed this information to the Council at the time. Nor is there any evidence that Mrs Y applied to the Council before 2016.
- If Mrs Y wishes to complain about the alleged inaction of the County Council between 2014 and 2016, she would need to submit a complaint to that authority in the first instance. However, Mrs Y should be mindful of the Ombudsman’s time limits. The law says 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. The Ombudsman may therefore consider that it is too late for us to consider matters dating back to 2014.
Investigator's decision on behalf of the Ombudsman