Summary: There was fault by the Council. It did not consider whether it could waive the amount repayable for a Disabled Facilities Grant on the grounds that Mrs B was selling the property due to the impact on her wellbeing. This has left Mrs B uncertain as to whether the Council properly considered her situation. The Council should reconsider Mrs B’s request and write to her with the reasons for its decision.

The complaint

1. Mrs B complains about how the Council dealt with a charge to repay a Disabled Facilities Grant (DFG) on the sale of her home. She says that the Council’s refusal to waive repayment has caused her financial hardship because she cannot afford to make essential improvements to her new home.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered the information provided by the complainant. I have considered the Council’s response to my enquiries and the correspondence between the parties. I have also considered the law. Both parties have had the opportunity to comment on a draft of this statement. I have not received comments from Mrs B. The Council agreed to my recommendations.

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What I found

The law and council policy

5. When the Council makes a DFG, the applicant enters into an agreement with it. This says the Council will require the DFG be repaid (up to £10,000), if the applicant sells the property within ten years of the date the Council certify that the work is complete. In deciding whether to require repayment the Council will consider each case on its merits and:
• whether repayment will cause financial hardship;
• whether the sale of the property is to allow the recipient to relocate for work;
• whether the sale is connected to the physical or mental health or the wellbeing of the recipient; and
• whether the sale is to allow the recipient to live with someone needing care or to be cared for.
6. If the applicant makes a representation to the Council that one of the grounds applies and the Council is satisfied that there are grounds, it will present a report to the appropriate Director. The Director will make a final and binding decision.

What happened

7. Mrs B’s late husband had a degenerative health condition. They moved to be nearer family for support and the Council made a DFG. Sadly, around five years later, Mr B moved into a nursing home and died.
8. Mrs B was diagnosed with cancer a few days before her husband’s death and she was unable to work. This meant the costs of the home she had shared with her husband were unaffordable. As she had focussed on caring for her late husband, the house had fallen into disrepair. She decided to sell the home and buy a smaller dilapidated property nearby. She had agreed to sell her home for £103,500 to buy a smaller home for £90,000. Although she would have some money from the sale, she would have to spend this to make the new house habitable. It needed new electrics, a kitchen and a bathroom.
9. Mrs B understood the Council would ask her to repay £10,000 of the DFG, leaving her with no money to refurbish her house. Mrs B asked the Council to waive the DFG charge. The Council considered her request but refused to waive the charge. It said she had chosen to move somewhere that needed to be refurbished and she had equity in the house she was selling.
10. Mrs B asked the Council to reconsider. She gave it more information about her situation and that she could not afford to move unless the Council waived the charge. Mrs B made clear that she could not afford repairs to her current home, and could not keep up with the bills. The best solution is for her to sell the home, but she cannot refurbish the home she intended to buy if she repaid the DFG. Mrs B had moved to the area with her husband to be closer to family support. She wanted to stay in the same area so that her family could continue to support her following bereavement and her serious illness.
11. Mrs B also told the Council that she needed to sell the house as this was impacting on her wellbeing as it contained all the physical reminders of her late husband.
12. The Council did not waive the repayment. It said:
• Its policy says that if the applicant falls in to set grounds then it will ask its Director to consider waiving the repayment.
• It has considered whether the repaying the grant would cause financial hardship. The Council would be effectively paying for the refurbishment of the new property by waiving repayment of the DFG. The Council is not responsible for this.
• There are no other grounds to waive repayment.
13. Ms B delayed the sale of the property, but decided that she had to go through with this and so she sold the home and bought the dilapidated property nearby. Mrs B paid the DFG when she sold the home.
14. Mrs B complained to the Ombudsman on 29 October and it asked her to first complain to the Council. Mrs B made a complaint to the Council on 12 November 2018. The Council responded on 30 November. It said it would take legal advice and, in the meantime, wanted a summary of her financial situation. It listed the information it needed.
15. However, when the Council considered the information Mrs B provided it realised that she had sold the property and repaid the DFG. It said that this meant it could not refund this and could not retrospectively waive the repayment.
16. Mrs B asked the Council to reconsider. She said the Council should have put recovery on hold while it considered whether to waive repayment. She had delayed the sale of her home several times so the Council could reconsider its decision, but the buyer had threatened to pull out. The Council had not explained to her how to complain and this had caused delays and that selling the property would mean the Council could not waive the charge. Had she known that, her family would have helped her to stay in the property until the Council made a decision. She had bought the new property but could not live there as it still needed refurbishment which she could not afford.
17. The Council again consulted legal advice. It noted that Mrs B did not ask the Council for advice before repaying the charge. The legal advice remained that the Council cannot waive the charge after it has been paid. The Council also said that it had revisited the information Mrs B submitted and can find no basis to overturn its decision on financial hardship grounds.

Is there fault by the Council causing injustice to Mrs B?

18. The Council is entitled to take into account its legal advice that it cannot waive a charge that has been paid. I am also sympathetic to the Council’s position that it was clear with Mrs B that if she sold the property it would recover the charge, and that she made the decision to move despite this.
19. However, there is no bar to the Council making an ex gratia payment even if the charge has been paid, particularly if the Council decided that it had not properly considered Mrs B’s request sooner. It was fault for the Council not to consider an ex gratia payment.
20. In response to my investigation the Council revisited the information Mrs B had submitted. It decided that there was still no basis to waive the charge on the basis of financial hardship. It is open to the Council to reach that decision.
21. However, Mrs B makes clear that living at the house was impacting on her wellbeing and this was part of the reason for her move. There is no evidence that the Council has considered this. This is fault.
22. We cannot say that had the Council considered whether it should waive the charge on wellbeing grounds, then it would have decided in Mrs B’s favour. The Council’s failure to do so however, has caused Mrs B uncertainty as to whether it has properly considered all aspects of her situation.

Agreed action

23. The Council has agreed that within one month of this decision, it will show the Ombudsman it has:
• Shared this decision with its staff;
• Apologised to Mrs B; and
• Revisited the information she has submitted and decided whether it could have waived the charge on the basis that the sale of the house was connected to her physical or emotional wellbeing. The Council says this will be carried out by a senior member of staff not previously involved with the case.
24. If the Council decides it should have waived the charge, it should make the repayment to Mrs B. If the Council decides that it should not have waived the charge, it should write to Mrs B fully explaining its reasons. If Mrs B then feels the Council has not properly considered her situation, she can bring the matter back to the Ombudsman.

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Final decision

25. I have completed my investigation. There was fault by the Council causing an injustice to Mrs B.

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Investigator's decision on behalf of the Ombudsman