Decision : Upheld
Decision date : 06 Nov 2018
The Ombudsman's final decision:
Summary: Mrs Y complained the Council failed to provide suitable adaptations to meet the needs of her disabled son. The Ombudsman has found some fault because the Council took too long to carry out the initial assessment and did not provide her with a copy. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Mrs Y for the distress caused.
- Mrs Y complains about her request for disability adaptations to the family home for her son. In particular, she says:
- the process has taken too long;
- the Council’s proposals do not meet the needs of her son or other family members;
- she has not been kept properly informed in writing about what is happening; and
- she is unhappy about the way she has been spoken to by the occupational therapists involved.
- This has left Mrs Y feeling upset and depressed. She says it has impacted on her ability to care for her family and her son has lived in unsuitable conditions for too long.
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 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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
- 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
- considered the complaint and documents provided by Mrs Y;
- made enquiries of the Council and considered its response;
- considered the relevant law and non-statutory guidance, (Home Adaptations for Disabled People: A Good Practice Guide, 2013);
- spoken to Mrs Y; and
- sent my draft decision to both parties and invited comments on it. I have considered the comments received.
What I found
- Councils have an underlying primary duty under the Children Act 1989 to meet the assessed eligible needs of a disabled child.
- Section 2 of the Chronically Sick and Disabled Persons Act 1970 sets out the duties of councils to arrange for adaptations to a person’s home to secure his or her greater safety, comfort or convenience.
- Councils can arrange for adaptations to properties either via Disabled Facilities Grants (DFG) or by carrying out works themselves. Any adaptations carried out under a DFG must be necessary and appropriate, reasonable and practical to carry out. Adaptations carried out for a child must not be means-tested.
- The legal framework for DFG’s is set out in the Housing Grants, Constructions and Regeneration Act 1996.
- Mrs Y lives with her husband and six children in an owner-occupied, three bedroom house. Her son, D, is 11 years old. He is physically disabled following a stroke during infancy. He has mobility issues and epilepsy. D shares a bedroom with his three brothers. Mrs Y says her current living arrangements are unsuitable because:
- D is getting older and so needs his own bedroom and access to suitable toileting and washing facilities.
- D’s mobility and spatial awareness issues mean he needs more space generally.
- It is not practical or reasonable for D to use the ground floor bathroom as he needs assistance getting to the toilet at night and as he is getting older is embarrassed about the level of support needed in this area.
- Mrs Y has knee problems that affect her ability to support D physically.
- In May 2016, Mrs Y contacted the Council to ask for support for D. Mrs Y was told there was an 18 month waiting list for an occupational therapy (OT) assessment. The Council considered whether it was an urgent case and decided it was not. It offered Mrs Y some interim advice about how to manage the situation at home.
- Mrs Y contacted the Council again in November 2016 and January 2017 to advise the Council that D was falling frequently and she was struggling to cope as he was getting bigger. Again, the Council considered whether it should be reprioritised and decided it was not urgent. It suggested D should use a urinal and the family should consider moving to a more suitable property.
- In June 2017, D’s case was allocated to an occupational therapist, Ms P. Ms P carried out her assessment at the family home in August 2017. Options were discussed and the only solution appeared to be for a bedroom to be created downstairs but there was limited space available. A feasibility survey was arranged to explore possible options.
- A technical officer visited the property in November 2017 to compete a feasibility assessment. Three days later a meeting took place to discuss options, including moving to a different property.
- In the meantime, Mrs Y complained about the delay in being provided with a copy of the assessment and conduct of Ms P and her manager. In response, the Council advised her that OT assessments were not provided unless a formal request was made and there was a charge for this service. The Council also arranged for a second assessment by a different therapist.
- In December 2017, a further OT assessment was carried out by Ms X. This was followed by a further feasibility assessment in January 2018. The following three options were discussed with Mrs Y at a meeting:
- A ground floor extension.
- A stair lift.
- A loft conversion including through floor lift.
Mrs Y said she would discuss these options with her family.
- A further meeting took place to discuss the plans. Mrs Y said the lift was not needed as D can generally manage the stairs. The Council requested information from D’s physiotherapist about this.
- In March 2018, Mrs Y provided information from D’s physiotherapist.
- In April 2018, a further meeting took place. It was decided that:
- The lift was not needed. Because the bedroom remained a usable space there was no need for a loft conversion.
- There was insufficient outside space for an extension.
- A further proposal was put forward by the Council. This was to split the open plan downstairs living area into two rooms. This would provide a separate bedroom for either D or other family members.
- This was considered by Mrs Y and rejected as unsuitable because:
- It would take too long to get downstairs to D at night in event of a seizure.
- She did not want her children sleeping downstairs because of noise issues and they were more vulnerable.
- The living space left would be too small for the number of occupants.
- The remaining living space would be too crowded for D to move around safely because of his spatial awareness and mobility issues.
- She did not want to lose the family dining area as D needed a table to eat from.
- Mrs Y complained again to the Council. The Council maintained the proposal was suitable to meet his needs. In summary, the Council has said:
- It was satisfied his epilepsy could be managed. Mrs Y had said his seizures mainly happened in the morning when she was awake and the Council has offered a suitable alarm.
- A special chair and table could be provided for D to eat from.
- The living space would remain unaffected and so the change would not be disadvantageous to D.
- It would consider a further option of installing a toilet on the first floor and padding on the wall next to D’s bed. This would require a further feasibility survey as modifications would be required to the upstairs layout.
- The Council says Mrs Y has rejected its proposals to install an upstairs toilet. Mrs Y disputes this. There has been no action to progress the case since May 2018.
Analysis – was there fault leading to injustice?
Delay – from first contact to assessment
- When Mrs Y first asked for help in May 2016 she was told there would be an 18 month wait before an OT could be allocated. The Ombudsman has previously recommended that applicants should wait no longer than three months for an OT assessment. Mrs Y waited 15 months.
- There is a nationwide shortage of OT’s. The guidance states at paragraph 7.14, “the Government does not accept that a shortage of occupational therapists within a local authority’s department is a valid reason for a delay in delivering housing adaptations”. In order to address the problem of delay, the Council has told me it has employed extra staff and new procedures since.
- While I welcome this, I must still consider whether the long delay in this case was fault as it was much longer than the Ombudsman would expect.
- The case records show the Council carried out a preliminary assessment about the urgency of the case because Mrs Y said she was struggling to manage. I would expect to see this happen where there is such a long waiting list.
- A decision was made by a senior OT that as Mrs Y was managing there were no grounds for reprioritising. The records do not explain why and how the Council formed this view, particularly as Mrs Y said she was not coping.
- Mrs Y was also given advice about possible interim solutions such as moving to a new house and use of a urinal at night. Mrs Y told the Council neither of these were an option and gave reasons why. The Council did not change its position and did not address her concerns about the proposed interim solutions, such as the use of the urinal.
- As time went on Mrs Y made a number of further phone calls to the Council confirming that she was still not managing as D had fallen a number of times and he was getting bigger so he was more difficult to support physically. The Council maintained its position that it was not an urgent case. And again the Council repeated its advice about moving house or getting D to use a urinal at night. It also suggested she should go to the GP for a physiotherapy referral about his falls.
- I do not consider this was a satisfactory response. The records do not show any proper consideration was given to Mrs Y’s circumstances. The Council would not know how long it would take for a physiotherapist to be able to help D and whether this would address the problem of him struggling with the stairs. Mrs Y said the situation had changed but the Council did not show it took this into account when repeating its previous advice to her. I do not say the Council was obliged to reprioritise D’s case but it should have been able to show it properly considered what she said about D’s falls and him growing and becoming more difficult to manage.
- This, combined with the sheer length of time that it took the Council to assess D, is fault. I am satisfied Mrs Y suffered an injustice during this time because she made it clear that she was struggling with the situation at home.
Delay – following assessment
- Over a year passed since the first assessment and no decision has been made about how’s D’s needs will be met (other than some minor adaptations that have been carried out). In line with the guidance, the Ombudsman would normally expect adaptations to be completed within six months. I must decide whether this delay is due to fault by the Council.
- I have carefully considered what happened during the past year. I can see the Council has put forward a number of different proposals, all or which required feasibility assessments and input from D’s physiotherapist. These have been rejected by Mrs Y as unsuitable. The Council has taken no action since May 2018 because its last proposal (upstairs toilet) was rejected by her.
- While Mrs Y disputes this the case records include an internal email from a complaints officer stating he had spoken to Mrs Y and she was not willing to consider the proposed adaptation.
- I am satisfied the Council has acted within a reasonable timescale once the first assessment was completed. The time that has elapsed since has been due to the Council responding to Mrs Y’s concerns and preferences. Inevitably this has led to further delay but this has not been due to fault by the Council.
Failure to meet needs of D
- Mrs Y is of the strongly held belief that the Council’s proposals will not meet D’s needs. In reaching my decision about whether there has been fault I have carefully considered what Mrs Y has told me, the case records, the OT assessments and the Council’s detailed stage two response.
- I do not consider there was fault in this case. This is because the Council documents show officers visited Mrs Y’s homes on a number of occasions, considered D’s identified needs and drew up several proposals. It clearly listened to Mrs Y’s preferences and concerns and responded to relevant evidence as it was presented. For example, it carried out a feasibility assessment on a ground floor extension but this was not possible because of lack of space. It carried out initial feasibility into a loft conversation too but this was not necessary because D was assessed as being able to use the stairs following professional advice being sought by D’s physiotherapist.
- The decision to meet D’s needs by internal ground floor adaptations is a decision for the officers’ professional judgement. The Ombudsman cannot question the merits of decisions taken without fault in the way they were made. There was no fault here. However I would encourage the Council to keep working with Mrs Y to identify a suitable adaptation.
Failure to consider needs of the wider family
- The Council states “the DFG cannot undertake adaptations to meet the needs of the wider family”.
- The guidance states that assessments “should take account of the needs of any non-disabled children…and the need for the disabled child to be able to participate in all aspects of family life, for example, in ensuring dining space is available for all family members to eat together”.
- So while I accept the Council’s primary obligation is towards D it should still take into account the wider family during the assessment process.
- I am satisfied it has done so. There is clear evidence that consideration has been given to being able to have a family lounge and for D to be able to eat with his family, albeit on his own table. I cannot ignore the constraints posed by the size of Mrs Y’s home. Realistically however, whatever proposals that have been made have been done so in the context of the limited space and number of occupants. I accept this is not to the satisfaction of Mrs Y but this is not due to fault by the Council.
Failure to keep her informed
- Mrs Y also complains about the lack of written information she has been given generally in respect of her request for support. She says the Council has not written to her formally setting out its position and proposals. She says she felt “left in the dark”.
- In response, the Council has said as soon as it became aware Mrs Y was unhappy with the service she was invited to a meeting to discuss the issues. There also have been a number of meetings since the assessment process started.
- The Council also says it is only once a decision has been made about what to do would formal DFG paperwork be completed.
- But Mrs Y asked to see a copy of the assessment and the Council refused. Only when she formally complained was she told in order to see it she would need to make a formal subject access request to which a fee of £10 would be made. This is not good practice and is fault. Councils should be open and transparent about their decision making and it is entirely reasonable for Mrs Y to have sight of the OT assessment. While I accept the Council may chose not to provide this automatically, if it is requested, she should not have to go through a separate department and pay £10 to do so. This is fault.
- Despite this, I am satisfied that the Council has demonstrated that it kept Mrs Y informed about what it was doing verbally, if not in writing. The case records show that the Council’s rationale for its proposals has been explained to Mrs Y at the various meetings.
- While I acknowledge Mrs Y has felt frustrated by the lack of progress and lack of information I cannot say this is as a result of maladministration by the Council. It has explained that formal paperwork is not completed until plans have been finalised and this is a practice it is entitled to adopt.
Unprofessional conduct of the first occupational therapist
- Mrs Y’s stage one complaint focussed around the conduct of the first OT. She says she made a number of insensitive remarks that left Mrs Y feeling belittled and judged. She says her manager just paid lip service to her complaint to stop her taking it further.
- In response the Council apologised for Mrs Y feeling the way she did and would discuss the concerns with the OT and arrange customer care training. It also arranged for a different OT to conduct a fresh assessment.
- The Ombudsman could not add anything further here. I have considered the case records and can find no evidence that the OT or her manager acted unprofessionally. The Ombudsman makes decisions on the balance of probabilities. In this complaint the issues relate to one person’s word against another. There is no independent witness. As I am unable to prefer one account over another, I am unable to make a finding of fault on this part of the complaint. This does not mean I do not believe Mrs Y perceived the situation as she did, rather I have no evidence to support a finding in her favour. And in any event, I am satisfied the Council has provided a suitable resolution in its stage one response.
- To remedy the faults and injustice identified in this decision, I recommended the Council should, within four weeks of the final decision:
- Apologise to Mrs Y; and
- pay her £600 to acknowledge the delay in arranging the assessment and for the failure to provide her with a copy of the OT assessment. This is £50 for each month over and over the three months that the Ombudsman considers to be an acceptable time to wait for an OT assessment.
- Provide the Ombudsman with an up to date report about the current waiting times for OT assessments.
- Review its procedures to ensure OT assessments can be provided upon request without charge.
- There is evidence of fault in the way it responded to Mrs Y’s request for adaptations to meet the needs of her disabled son. The Council has agreed a suitable remedy.
Investigator's decision on behalf of the Ombudsman