Decision : Upheld
Decision date : 16 Jan 2019
The Ombudsman's final decision:
Summary: Mr X suffered injustice due to fault in the way the Council handled his request for an Occupational Therapy assessment and his application for a Disabled Facilities Grant.
- Mr X complains that the Council:
- is taking too long to process and approve an application for a Disabled Facilities Grant (DFG) to carry out home adaptations so he can use the kitchen independently and have access to the garden; and
- has not properly handled his complaints about this matter.
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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 have considered Mr X’s complaint along with the Council’s comments and relevant documents from its records.
- I have considered the comments Mr X and the Council made on my draft decision.
What I found
- Disabled Facilities Grants (DFG) are means-tested mandatory grants that must be awarded to fund essential home adaptations for the benefit of someone with a qualifying disability. The maximum grant is £30,000. (Housing Grants, Construction & Regeneration Act 1996)
- A DFG can be awarded for one or more of the purposes specified in section 23 of the Act. These include adaptations:
- to make a kitchen accessible or to enable the disabled person to prepare and cook food;
- to facilitate access to and from a garden and make the access safe.
- a completed DFG application form;
- particulars of the grant works (i.e. a specification); and
- at least two estimates from different contractors for the cost of carrying out the works.
“Authorities faced with difficulties in managing budgets may seek to defer payment of grant. The current legislation specifies a maximum of six months between application and approval. Provision exists to, in exceptional cases, delay payment for up to twelve months from the date of application. These need to be viewed as the maximum times allowed for these processes rather than the norm; such delays are contrary to the intention of the DFG programme which is to assist disabled people in achieving a better quality of life through adaptation to their home as quickly as possible.”
- The guide acknowledges that councils may use the power to defer payment of DFGs when payment of all approved grants within six months may cause serious resource problems. It may choose to reschedule a DFG to the next financial year. The guidance goes on to say:
“However, it is the Department’s view that the section 36 power should be used sparingly and not where it would cause hardship or suffering to an applicant whose adaptation needs have been assessed as urgent, for example where a disabled person will be leaving hospital or residential care to return home or to move into a new dwelling. It is also likely to be inappropriate to use the section 36 power where the long-term costs to the applicant of doing so would be disproportionate to the short-term savings.”
Mr X’s circumstances
- Mr X is a social housing tenant. He has a progressive medical condition and uses a powered wheelchair indoors and outside. He lives, with his adult son, in a two bedroom ground floor flat which is wheelchair accessible. However, the layout of the kitchen and the lack of space means Mr X cannot independently make hot drinks or meals.
- The Council has assessed Mr X’s eligible social care needs. He receives a Direct Payment to pay for 61 hours of weekly support from a Personal Assistant (PA). Mr X says he has been using his Personal Independence Payment to pay for extra hours of support.
- Mr X’s Care and Support Plan says the PA will help meet Mr X’s personal care needs, prepare meals, do laundry and housework and help with medication and social interaction. The PA provides support for eight hours every day.
The DFG enquiry and application
- There is a dispute about when Mr X first contacted the Council to enquire about a DFG to fund adaptations to the kitchen.
- Mr X is certain he first telephoned to enquire about a DFG in November 2017. He does not remember the date of the call and he did not make a note of it at the time. In one of his later emails to the Council, sent on 7 April 2018, Mr X said he had contacted Adult Social Services in February 2018 to apply for a Disabled Facilities Grant.
- The Council says it has no record of contact from Mr X in November 2017 about a DFG. Its first record is a telephone call he made to Access Harrow on 30 January 2018. Mr X said he wanted a referral to the Occupational Therapy service to assess his need for adaptations to the kitchen. He explained there was not enough space for him to manoeuvre his wheelchair in the kitchen without denting the cupboards and the white goods. He could not make a cup of tea or toast and his carer had to make his meals. He said he was totally dependent on his carer and he wanted to be able to prepare and cook food for himself.
The referral to the OT service
- The information was passed to the OT team on 8 February 2018. Based on the information Mr X gave, he was not deemed to be a high priority case that required an urgent assessment.
- The Council says it will assess the highest priority cases within 48 hours on average. This applies to a disabled person who needs a moving and handling assessment because there is a risk of pressure sores or the carer’s health is at risk.
- The Council offers other high priority cases an assessment within six weeks. The criteria for these cases are:
- cases where there is a safeguarding investigation and an OT assessment is necessary;
- people who are terminally ill;
- people who have no other means to meet their need – e.g. no carer or relative to help them take a shower or use the toilet;
- people who are at risk of moving into residential or nursing care and this can be prevented by providing equipment or adaptations;
- people who have been discharged from hospital who do not have appropriate equipment to help them manage at home.
“Please note that we are currently having funding issues with payment of Disabled Facilities Grants, this means there could be a delay of up to 12 months from the date of formal grant approval”.
- This was the first time Mr X was told there would be a delay in paying the grant. In response to my enquiries, the Council has confirmed an error in the letter. It should have said payment would be made within 12 months of the date of the DFG application and not the date of grant approval. It has since amended the letters.
- Mr X is still waiting for the OT and grant surveyor to make a joint visit to draw up plans for the scheme. In late September, the Council told us it expected to allocate his case within the next two to three months.
The impact on Mr X
- Mr X says he must rely on someone else, usually his personal assistant, to prepare all his drinks and food. He cannot clear away or wash dishes and mugs. When his carer is not there, he cannot make a hot drink or food if he is thirsty or hungry.
- He cannot put food away in the kitchen cupboards or reach the fridge without help. He cannot use the washing machine which is in the kitchen. As part of the DFG works, it would be moved to the hallway where it would be accessible. There is not enough space in the kitchen for Mr X to open the oven, hob or microwave from his wheelchair.
- Mr X says this loss of independence, and the uncertainty about when the DFG will be approved, is causing him stress and adversely affecting his mental wellbeing. He is currently waiting for an appointment for a psychological assessment.
The Council’s comments
- The Council wishes to apologise to Mr X because it understands the delay in processing the DFG application is causing him inconvenience and frustration.
- It accepts it did not communicate well during the complaints process and it has apologised for this.
The Council’s DFG budget and deferring DFG payments
- The Council says about 350 residents are on the OT waiting list. It estimates about 100 of these will need an adaptation.
- For cases that are not deemed to be a high priority under the Council’s criteria, the average waiting time for an OT assessment currently stands at 12 months. The Council says it will provide appropriate equipment to help meet the person’s needs meanwhile. It will review the person’s priority on the waiting list if they report a significant change in their circumstances.
- The Council says the DFG budget for the 2018/19 financial year is already fully committed. Central government’s formula for calculating the grant for DFGs means it gets a substantially lower grant allocation than three neighbouring boroughs. It receives £5.65 per head of population compared to figures ranging from £9.05 and £13.93 per head in the neighbouring boroughs.
- Due to these budget pressures, the Council has decided to defer payment of approved DFGs without exception. It will make some interim provision, such as providing appropriate aids and equipment, to help meet the person’s needs while they wait for the DFG works.
- Mr X made the point that the Council’s budget for DFGs is not limited to the funding it receives from central government. It can use other funding streams to supplement it. He says the fact that the budget was exhausted so early in the financial year indicates it was not set at a realistic level to meet expected demand.
- The Council told me the Director of Adult Social Care Services has briefed councillors about the DFG budget. The Council’s Health and Wellbeing Board has not yet considered a report on this matter.
- The Corporate Strategic Board is currently examining the resources for DFGs and considering a business case for increased Council capital funding from 2019/20 onwards.
- Mr X is certain he first contacted the Council to enquire about a DFG in November 2017. According to the Council’s records, his first enquiry was a telephone call on 30 January 2018.
- Mr X sent an email to the Council on 7 April 2018 in which he says he first enquired about a DFG in February 2018. There is not sufficient evidence for me to find that Mr X first made an enquiry in November 2017 and the Council failed to act on it.
- The Council had to devise and apply criteria to assess the relative priority of people who request an OT assessment due to the heavy demand for this service. The criteria must be objective and applied consistently and fairly. It was not fault to adopt criteria based on the disabled person’s level of risk and severity of need. The information Mr X gave in January 2018 about his circumstances did not meet the criteria for the high priority categories. It was therefore not fault to put him on the general waiting list.
- However, the Council should have informed Mr X when it accepted the referral about the likely waiting time for an OT assessment. He was not given this information until after he had made a complaint about the delay. That was fault. It would be good practice for the Council to use a standard form to record information about the person’s circumstances at the point of referral to ensure it has sufficient information to decide on their priority.
- After Mr X made a complaint, and gave further information about the risk of harm when he used the kitchen, the Council moved him on to the high priority list. I understand Mr X is upset and frustrated that it took 14 weeks for an OT to visit to assess his needs. But it was not fault for the Council to apply criteria to decide how to prioritise cases on the waiting list. In assessing his priority, it was relevant for the Council to take into account that Mr X had eight hours of daily support from a carer who prepared some meals and drinks.
- After the OT completed the assessment on 23 May, no further progress was made until 6 August when the HIA caseworker visited to complete the DFG application forms. This delay was fault and added unnecessary delay to the DFG process.
- Mr X is still waiting for a date for the joint visit by the OT and grant surveyor. It is not yet clear when that will happen or how much longer it will be before the Council makes a decision on the DFG. It is not yet clear if the DFG will be approved although that seems likely.
- The six month statutory time limit for making a decision does not start until the grant works have been specified and the Council has two estimates for the works from contractors. If the Council then approves the grant, it can delay the payment by using the section 36 power. Mr X has already waited 11 months since he first enquired about a DFG.
- Mr X’s DFG application has not yet been approved. So we do not yet know whether it will be approved but payment will be deferred. The Council has not set the DFG budget for the 2019/20 financial year. However, we can consider the wider impact of routine deferment of grant payments on residents who have not complained to us.
- The DFG budget is not adequate to meet the demand for grants. Faced with this constraint, the Council has rationed resources by adopting a blanket policy of deferring a DFG payment in every approved case. Section 36 of the Act gives the Council the power to defer payments. However, the guidance makes it clear that this power should be used sparingly, in exceptional circumstances, rather than routinely in every case. By deferring every DFG payment the Council is failing to exercise its discretion and consider the impact delay has on applicants who may be suffering significant hardship. That is fault and the Council needs to review this policy.
- I have completed the investigation and found Mr X suffered injustice due to the faults identified in this statement.
- The Council has accepted my findings and agreed to provide a suitable remedy.
Investigator's decision on behalf of the Ombudsman