Royal Borough of Windsor and Maidenhead Council (18 009 778)

Category : Adult care services > Disabled facilities grants

Decision : Upheld

Decision date : 20 Jun 2019

The Ombudsman's final decision:

Summary: Mr X complains that the Council delayed and refused a second exit when he applied for a disabled facilities grant, despite two OT’s recommendations. When he appealed this, his bathroom and other works were put on hold and his needs were not met in the best way. The Ombudsman finds the Council did not need to provide the exit but was at fault in the confusing recommendations, delays and failure to clearly explain why it was not responsible. The Council will arrange for the remaining work to be completed urgently.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains that the Council:
    • refused to create a second exit from his home despite two occupational therapists recommending this.
    • put the agreed parts of his adaptations, a wet room and a driveway, on hold while he appealed against its decision about the exit.
  2. Mr X has been advised that under the building regulations the property should have a second exit. He wants the Council to reconsider its decision and complete the full works as soon as possible.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)

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How I considered this complaint

  1. I considered information from the Complainant and from the Council.
  2. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Disabled Facilities Grants

  1. Disabled Facilities Grants are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to provide grant aid to disabled people for certain adaptations. Before approving a grant a council must be satisfied the work is necessary and suitable to meet the disabled person’s needs and also reasonable and practicable.
  2. Social care authorities must promote ‘wellbeing’ when carrying out any of their care and support functions. Wellbeing includes the suitability of living accommodation. The Care Act 2014 recognises that suitable accommodation is one way of meeting care and support needs. Prevention is critical to the Care Act, and home adaptations are an example of secondary prevention.
  3. A council should give the applicant a decision on a grant application as soon as reasonably practicable. This must be within six months of the grant application. If a council refuses a grant it must explain why. Once the work is complete the council must usually pay the grant in full before 12 months from the date of the grant approval.

What happened

  1. Mr X has disabilities which cause him significant difficulty with mobility. He lives in a housing association property.
  2. On 27 June 2017, an occupational therapist (OT1) assessed his needs for adaptations to his property. OT1 recommended:
    • Widen all internal doorways.
    • Remove pillar to allow wheelchair access to bathroom.
    • Convert bathroom to wet room.
    • Provide door from living room to garden with ramped access to provide a fire exit.
    • Update central heating system.
    • Remove storage heater in hallway.
    • Remove section of kitchen work surface to allow for fridge freezer.
    • Create hardstand at front of property.
  3. On 15 January 2018, another OT (OT2) carried out another assessment and recommended:
    • Widen access areas.
    • Remove pillar
    • Remove bath and create shower area.
    • Provide rear access from lounge and ramp to garden.
    • Install gas central heating.
    • Remove heater in hallway.
    • Remove kitchen work surface to allow for fridge freezer.
    • Create hard standing at front.
    • Upstands to existing front ramped access.
  4. On 21 February, Mr X complained in person. Just over one week later, the Council responded. It said delays were due to:
    • Checking Mr X’s medical status with the GP.
    • Checking Mr X’s housing status with the landlord.
    • Mr X being on the housing transfer list.

It said Mr X’s application was now being processed and apologized for the delay in communication.

  1. On 15 June 2018, a senior OT asked OT2 what works, if any, would be necessary to ensure safe wheelchair access to the rear garden from the existing ramp. This was because OT2 had noted the side access was too narrow for a wheelchair and the grass was “swampy”. OT2 responded and advised that on the initial visit access was cluttered and dark but on a later visit, the clutter had been removed and was accessible for a wheelchair. The fire team had also visited and reported no fire risk.
  2. On 2, and again on 24 August, Mr X emailed the Council. He said he had taken advice. He said the information provided by the Council was wrong and he did not have sufficient access to his back garden. On 24 August, the Head of Department for the Council responded (Officer 1) and said he would review Mr X’s complaint and his recent communications with the Council.
  3. On 31 August, Mr X wrote to the Council. He said he had taken advice and asked what it intended to do as he had not yet heard.
  4. On 7 September, Officer 1 responded to Mr X and said he had asked a Lead Officer who had not previously been involved in the case to review the decision. He said he hoped to confirm the outcome “next week”.
  5. On 17 September, Mr X emailed again as he had not heard from Officer 1. He said he had spoken to his advisers to check what he should do next. Officer 1 responded and said that Officer 2 had been unwell and therefore had not completed the review. He said Officer 2 was now back at work and the review would be his priority “this week”. Mr X said he had sent the matter to his legal team.
  6. On 22 September, Mr X wrote to Officer 1. He said as the review had not been dealt with, he had taken advice and would now bring his complaint to the Ombudsman.
  7. On 24 September, Officer 1 wrote to Mr X with the outcome of his review. He said he had agreed to review the complaint under the Council’s corporate complaints procedure and upheld the decision about his DFG application. He said the second exit was “not justified under the criteria of the grant” and Mr X had not appealed the decision in time. He advised Mr X the Ombudsman would not normally consider a complaint before the Council’s complaint process was completed and said he had the right to a “stage 2 review”.
  8. Mr X emailed Officer 1 and said he had been advised to ask for a stage 2 review of his complaint. He said he had also been in touch with the Ombudsman.
  9. On 22 October, the Council responded to Mr X. It said:
    • Both OT assessments recommended an additional exit from the lounge but the Housing Grants, Construction and Regeneration Act 1996 (HGC&R) says:
      1. A local housing authority shall not approve an application for a disabled facility grant unless they are satisfied:
      2. That the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and
      3. That it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling or building.
    • The second exit was declined because there is “no requirement to provide two exits from any property, regardless of the occupier”. A personal emergency evacuation plan (PEEP) was completed and did not identify the need for a further exit.
    • Mr X was entitled to access to his rear garden and OT2 had confirmed Mr X could access the garden.
    • The DFG panel can only approve works that are necessary and appropriate.
  10. It did not uphold most of his complaint and said it had already apologized that it had not made clear the difference between the recommendations and legal requirements. The Council advises it will clarify the distinction between client wishes and grant recommendations in future. It will also ensure that where officers are not the competent authority, it will refer to the appropriate authority. For example, this would mean OTs would not make a judgement on fire risk but refer to the fire service.
  11. The Council said Mr X’s DFG application had not yet been made as some criteria (related to the dispute around the second access) were outstanding. Once they were completed, the Council would have six months to approve or decline the application. It upheld Mr X’s complaint about service delays. It said the grant was only on hold to allow his appeal on the second exit.
  12. Mr X says he has been advised by an advice service, that his home should have a second exit because the kitchen does not open out onto a hallway. I spoke to an officer from the Council’s building control department who told me he could not advise whether a second exit was required without visiting the property. He could not say categorically that a second exit would not be necessary. The Council rightly says the housing association would be responsible for the second exit if one was required by building regulations.
  13. Mr X says he has not received a copy of his PEEP and was not aware of this being completed. While he waits for the recommended wet room, Mr X receives support from a care agency. Additionally, Mr X has had to undertake some work on the driveway because of ongoing problems which the work was intended to resolve. This cannot be reimbursed through the DFG process.

Was there fault which caused injustice?

  1. The Council’s responsibility for providing equipment did not end once it identified the equipment and adaptations Mr X needed. The adaptations were identified to meet Mr X’s needs and therefore needed to be in place as soon as possible. It is two years since the first OT assessment. The Council said it would have another six months in which to consider the application once this issue is decided and another year to complete the works. Although, technically this is correct, it fails to consider both Mr X’s needs and its own contribution to the confusion.
  2. Two OTs recommended a second exit. Mr X was also advised by an advice service, that a second exit was needed under building regulations. Whether the OTs were right to recommend this, Mr X understandably, believed the Council should provide it. However, unless a second exit was needed to meet Mr X’s social care needs eg accessing his garden, the Council would not be responsible for this. The second exit should never have been considered as part of the DFG application and this confusion only arose because, in the first instance, the OTs recommended it. As it has already acknowledged, the Council should have explained the difference between the recommendations and legal requirements. It should also have communicated the difference between its responsibility and the housing association’s clearly to Mr X and made it clear any responsibility lay with the housing association.
  3. The Council was at fault in the way it dealt with Mr X’s concerns. This meant it has not met his needs in the most suitable way for longer than an adaptation through a DFG would normally take to complete. It has caused Mr X avoidable and significant distress, time and trouble. Mr X has also carried out some work on the driveway, the cost of which he will not be able to recover from the Council.
  4. The Council has accepted the OT assessments caused confusion, and that it should have been clearer about recommendations and requirements. It has also taken action to ensure OT assessments do not make similar recommendations in future.
  5. Mr X accepts the Council will not provide a second exit and now just wants his bathroom and other works completed as soon as possible.
  6. The Council has agreed to now process the application swiftly to avoid causing any further injustice; it has confirmed the application is already approved.

Agreed action

  1. To remedy the injustice identified above, I recommended the Council arrange for the recommended adaptations to be delivered without further delay.
  2. It has agreed to do this and will aim to complete these recommendations within three months of the final decision and provide evidence of completion to the Ombudsman.

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Final decision

  1. I have completed my investigation and uphold Mr X’s complaint that the Council:
    • refused to create a second exit from his home despite two occupational therapists recommending this.
    • put the agreed parts of his adaptations, a wet room and a driveway, on hold while he appealed against its decision about the exit.

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Investigator's decision on behalf of the Ombudsman

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