Luton Borough Council (18 013 146)

Category : Adult care services > Disabled facilities grants

Decision : Upheld

Decision date : 28 Nov 2019

The Ombudsman's final decision:

Summary: There was delay in the way the Council progressed adaptations that were required to meet Mr D’s needs. The Council has agreed to apologise to the family, to pay the family £1,200 and to consider a review in its policies.

The complaint

  1. Mr C complains on behalf of his disabled son, Mr D. He says the Council has delayed adapting his house to meet Mr D’s needs.

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What I have investigated

  1. I have investigated the Council’s actions relating to its social care duties. Paragraphs 89 and 90 explain why I have not investigated the actions of the Council’s housing department or any complaints about personal injury.

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The Ombudsman’s role and powers

  1. 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)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
  4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  5. 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 have discussed the complaint with Mr C and the Council. I have considered the documents that Mr C and the Council have sent, the relevant law, guidance and policies and the Council’s comments on the draft decision.

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What I found

Law and guidance

  1. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Care plans

  1. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.
  2. The threshold for eligibility is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Council must consider whether:
    • The adult’s needs arise from a physical or mental impairment or illness.
    • As a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes.
    • As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
  3. The outcomes include:
    • Managing and maintaining nutrition
    • Maintaining personal hygiene
    • Managing toilet needs
    • Being appropriately clothed
    • Being able to make use of the home safely
    • Maintaining a habitable home environment
    • Developing and maintaining family or other personal relationships
    • Accessing and engaging in work, training, education or
    • Making use of necessary facilities or services in the local community

Disabled adaptations

  1. Disabled Facilities Grants (DFG) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. There is also detailed guidance on good practice.
  2. Councils have a statutory duty to provide grant aid to disabled people for certain adaptations.
  3. The Council will need to check that the proposed works are:
    • necessary and appropriate to meet the disabled person’s needs.
    • reasonable and practicable depending on the age and condition of the property.
  4. Councils will often consult an occupational therapist (OT) from the social services department to make carry out the assessments.
  5. The maximum grant that can be paid in England is £30,000 and the grant is means tested.
  6. The Act says housing authorities should approve or refuse a grant application as soon as reasonably practicable and no later than six months after the date of the application. The works should be completed within 12 months of the approval. The grant may be paid in instalments or in whole after the works are completed. But it should not be paid later than 12 months from the date of the application if the works are completed.
  7. The guidance says that where the process to secure a long term solution will be lengthy, then it is appropriate for interim help to be provided through the provision of equipment or temporary works. It says it is not acceptable that the disabled person should be left without interim help for a period of weeks or months.
  8. The guidance has set performance targets for councils to achieve DFG which it says the Council should aim to achieve in 95% of its adaptations.
  9. This is split in three stages:
    • Stage 1: initial enquiry to OT recommendation.
    • Stage 2: OT recommendation to approval of scheme.
    • Stage 3: Approval of scheme to completion of works.
  10. The timescales for urgent adaptations are:
    • Stage 1 (5 working days), stage 2 (30 working days) and stage 3 (20 working days
  11. The timescales for non-urgent adaptations are:
    • Stage 1 (20 working days), stage 2 (50 working days) and stage 3 (80 working days

Council’s policy

  1. The Council also has its own policy. This says that DFGs are available to owner/occupiers and private sector tenants. When a Council tenant needs certain adaptations, like an extension, this is funded by the Council’s housing funding, not DFG. However, the Council says the process is similar.
  2. The policy does not include any timescales for considering applications, approving applications or finishing the works. It says the Council has a waiting list and enquiries are held in strict date order.

What happened

  1. Mr D is a 19 year old man who has severe global developmental delay. He is unable to speak or walk and is doubly incontinent. He lacks mental capacity to make decisions about his care. Mr D came to the UK to join his family in May 2017.
  2. Mr and Mrs C also have four other children, a boy and three girls. Mrs C has a disability as she has left sided weakness and is prone to falls.
  3. The family lived in a privately rented three-bedroom property. Mr D shared a bunk bed with his brother in the upstairs bedroom.
  4. The Council assessed Mr D’s needs in July 2017 and provided him with a support plan. He received direct payments for 25 hours of support by a personal assistant for personal care and social interaction. Mr D did not receive any benefits but was in the process of applying for benefits.
  5. An occupational therapist carried out a risk assessment in July 2017 and wrote a report dated 4 September 2017. She said:
    • She had provided Mr D with a profiling bed (where sections can be raised or lowered) and a pressure relieving mattress. The bed had bed rails which reduced the risk of falling out the of bed and bumpers which reduced the risk of entrapment.
    • She had provided Mr D with a crash mat which should be used to reduce the risk of falls when the bed rails were not up.
    • Mr and Mrs C used to carry Mr D wherever he went but this posed very high risks to Mr D and Mr and Mrs C in terms of injuries and falls. She said they should transfer Mr D using a hoist at all times.
    • Mr D did not have a wheelchair and the family used a pushchair to take him into the community. The OT said Mr D should not be transported in a pushchair as this offered no support and meant he could not be easily accessed should he choke on his own saliva. She had made a referral to wheelchair services for Mr D.
    • The family would take Mr D out in the car by putting him in a child’s car seat which had been adapted. The OT said this should stop as the child car seat offered no protection if there was an accident. The OT said there were no car seats to transport him in the car available to her knowledge.
    • The OT said she had considered a five-point harness belt for the car. Mr C was going to ask the physiotherapist who was visiting Mr D on 8 August 2017 whether she would recommend this type of belt for the car. Only if the physiotherapist consented in writing to the use of the belt and sent a copy to the OT, would the ban to transport Mr D in the car be superseded
    • The family’s landlord wanted the family to move out of their home. Therefore, the family needed urgent housing.
  6. The OT also wrote a letter to Mr and Mrs C dated 4 September 2017 in which she set out all the risks she had identified in her report and her recommendations. Mr C signed the letter on 11 September 2017 to confirm he understood the risks.
  7. Over the following months Mr D was provided with a wheelchair, a hoist and chair slings.
  8. The OT carried out a moving and handling assessment in November 2017. Mr and Mrs C said they had seen Mr D put his legs over the side of the bed rails. The OT said the bed should be at its lowest setting when Mr D was in the bed and the crash mat should be placed next to the bed. The OT discussed another type of bed that could be suitable for Mr D. Mr and Mrs C told her wait to start the referral for this type of bed until they had moved to a new home.
  9. The Council found a house for the family which had been extended in 2011 to be suitable for a disabled person. Downstairs there was a living/dining room, a bedroom, a wetroom and a kitchen. Upstairs there were three bedrooms and a bathroom.
  10. The family moved into their new Council rented home at the end of December 2017. Mr D shared the downstairs bedroom with his brother. The upstairs bedrooms were occupied by Mr and Mrs C and Mr D’s three sisters.
  11. The Council provided updated moving and handling plans in January and February 2018. These gave detailed descriptions on how Mr D was to be transferred from and to his bed.
  12. The OT wrote to Mr C on 30 January 2018. She said that one of the things on her to-do list was to ring the representative of a company which provided car seats for disabled children. She would ask the representative to discuss the options with Mr and Mrs C so they could obtain a quote and ‘consider charitable funding or a one-off direct payment or specials order as appropriate’.
  13. The Council provided Mr D with an updated support plan in April 2018. Mr D received 35 hours PA support a week. This included 7 hours of personal care support and 28 house of day care support. Mr D would also receive two days of care at a local centre.
  14. The social worker said:
    • The living/dining room was too small so the family could not sit together to eat a meal.
    • Mr D shared a room with his brother but this meant it was difficult to use his equipment such as the ceiling hoist. Mr D also disturbed his brother’s sleep.
    • Mrs C had to go up and down the stairs a lot during the night. As she had her own health problems, it was difficult for her to do so.
  15. The OT carried out a risk assessment in May 2018 because Mr C had been raising concerns that the house and the adaptations did not meet Mr D’s needs. The OT said:
    • She spoke to the wheelchair assessor and Mr D needed postural support to maintain an upright seated position to reduce the risk of choking or aspirating. Therefore, a car seat would not be safe. In addition, he could not be transferred safely in and out of the car. Mr D could not be transported in a car unless it was a car which was adapted to take a wheelchair.
    • Mr D’s room would be large enough if he did not share it with his brother and if the wardrobe and large television were taken out of the room. The OT recommended that Mr D’s sisters share one room so that the brother could move upstairs but Mr and Mrs C said there was not enough space. Mr and Mrs C said there was not enough room for all the children upstairs.
    • Mr D was more mobile now and there was a small gap between the mattress bumpers and the bed rails where Mr D sometimes put his legs through. The OT offered to replace the bed for a low entry bed without rails and to provide a crash mat, but Mr and Mrs C declined this offer.
    • The OT therefore carried out a bed rails risk assessment and offered a solution which was to bridge the gap between the rails and mattress in the short term to reduce the risk. Mr and Mrs C agreed and signed the risk assessment document.
    • The OT said that, in the long, term she would consider alternative solutions for the bed.
  16. The OT wrote a letter on 21 May 2018. She said there were concerns about the new property the family moved to which were:
    • Mrs C had to go up and down the stairs several times during the night to assist Mr D which was difficult for her as she was disabled.
    • There was no ceiling track hoist in Mr D’s bedroom so they had to use a mobile hoist but space was restricted in the room because Mr D shared the room with his brother. His brother’s sleep was also disturbed.
    • The family was not on a secure tenancy yet as they moved in in December 2017 therefore she could not ask for a ceiling track hoist.
    • The lounge was too small for the entire family to be together.
    • Mr D could not access the back garden as it had not been adapted yet for his wheelchair.
  17. She recommended that the Council:
    • Provided Mr and Mrs C with a secure tenancy.
    • Extended the ground floor so that the living/dining room would be large enough to accommodate the family and so that there would be a double sleeping space for Mr and Mrs C downstairs.
    • Installed a ceiling track hoist in Mr D’s bedroom.
    • Installed a wheelchair accessible ramp at the back door and a level safe area in the garden.
  18. Mr C had applied for a grant for an adapted car seat for Mr D to a children’s charity. The charity told him on 8 May 2018 that, as Mr D was no longer a child, it could not assist him.
  19. The OT contacted Mr C on 10 May 2018 to ask for his availability for demonstrations to take place of the two different bed options that were available.
  20. The Council re-assessed Mr D’s needs for care and support in May 2018. The care plan said Mr D received 35 hours of personal support assistance, 7 hours for personal care and 28 hours for social activities. The assessment said the OT was assisting Mr D in purchasing a car seat.
  21. There were two different types of bed which could be suitable for Mr D. The OT organised a demonstration of bed type 1 on 4 June 2018 which Mrs C attended.
  22. The OT was then absent from work for four weeks from mid-June to mid-July. As the relationship between the OT and Mr D had broken down, the Council allocated Mr D’s case to a new OT on 26 September 2019. The new OT attended a demonstration of bed type 2 and he was of the view that bed type 2 would meet Mr D’s needs and informed Mr C of this.
  23. The Council reviewed Mr D’s support plan in September 2018. It provided Mr D with a personal assistant for 15 hours of day care and with 17 hours of personal care. The Council also paid for two days of day care at a day care centre with transport to and from the centre.
  24. The OTs and someone from the housing department carried out a feasibility visit on 27 September 2018 to decide whether the family’s property could be extended to better meet the family’s needs. The referral for the adaptations was sent for approval to the advanced practitioner on 26 October 2018 and the adaptations were approved on 29 October 2018.
  25. Mr C told the Council on 4 November 2019 and said he preferred bed type 1.
  26. The architect drew up a draft plan on 12 December 2018 which Mr C and the OT agreed was suitable. The Council says this was sent to the planning department on 19 December 2018. On the website, the date of submission is 26 March 2019. The planning department approved the plan on 22 May 2019.
  27. The application for the bed was presented to the specialist equipment panel on 18 December 2018 but the panel deferred the decision. As the chosen bed could be seen to be limiting Mr D’s freedom, the panel felt a best interest decision under the Mental Capacity Act was needed.
  28. The best interest meeting for the bed took place on 17 January 2019 and everybody agreed that the chosen bed was in Mr D’s best interest. The panel approved the funding for the bed on 19 February 2019.
  29. The Council sent a tender for the extension works on 7 June 2019 and the quote was approved in July 2019. The Council also approved the works to place the ceiling hoist. The extension works are due to start on 16 September 2019.

The complaint

  1. I have summarised Mr C’s complaints and the Council’s responses insofar as they are relevant to the complaint that Mr C wants the Ombudsman to investigate.
  2. Mr C said:
    • The OT promised to provide Mr D with a car seat and this had never been provided. He referred to the OT’s email from 30 January 2018 where she said she discussed the car seat and the different funding options, and the reference to the car seat in the social worker’s needs assessment in May 2018. It was expensive to use taxis and Mrs C had difficulty transporting Mr D on the bus because of her own mobility problems.
    • They could not use the portable hoist in Mr D’s bedroom as there was not enough space.
    • Mr D needed a different bed as there was a risk that he could trap his limbs in his current bed.
    • The house was unsuitable for Mr C’s or the family’s needs. The house needed to be extended in line with the OT’s recommendations.
  3. The Council said:
    • The OT explored the option of a car seat but this was not suitable because he could not be transferred in and out of the car without a hoist and a car seat would not meet his postural needs. The family had been advised that putting Mr D in a car seat put him at risk of choking.
    • There was provision in Mr D’s care plan for access to the community. Mr D was entitled to free bus travel and his PA could assist him in travelling on the bus. The Council also provided him with transport to and from his day centre.
    • The OT had provided advice and recommendations on how to use the mobile hoist. The Council woule provide a ceiling track hoist in the bedroom once an extension has been built.
    • The OT carried out a bed rails risk assessment in May 2018 and agreed a temporary plan to manage the risk with on Mr and Mrs C while the Council was working on a longer-term solution.
    • The OT assessed the house in May 2018 and made a referral to the housing department.

Analysis

  1. When Mr C made his complaint to the Council, the Council had not approved funding for the extension, the hoist, the bed or the car seat. Therefore his complaint was the Council’s failure to agree the funding which he said was vital to meet Mr D’s and the family’s needs.
  2. The Council has now agreed to fund the extension and the hoist and has provided the bed. I have therefore focussed my investigation on whether there was any unnecessary and avoidable delay in relation to those complaints. I have only investigated the Council’s actions in terms of its social care duties. I have not investigated the housing duties as these are outside of the Ombudsman’s jurisdiction.
  3. I note that this was a complex case and the Council involved different agencies. It took a multi-disciplinary approach to meet Mr D’s needs. I also appreciate that this it was always going to take some time to get to the stage where the funding for the works would be agreed and started.
  4. My first observation is that there was a lack of focus in progressing the matter. It was not clear who was in charge of the process to decide what works were needed to meet Mr D’s needs and to ensure this was done within reasonable timescales.
  5. Mr C said from early 2018 that the house and the equipment that the Council had provided did not meet Mr D’s needs. What should have happened at this stage is that there should have been an assessment to determine what equipment and adaptations were needed to meet Mr D’s needs. Or alternatively, the Council should have explained to Mr C that he could make his own application for a DFG grant. The Council did neither and this was fault.
  6. Instead the OT went out in May 2018 but carried out a risk assessment, not an assessment to determine whether the adaptations were needed to meet Mr D’s needs. This meant Mr D’s rights in terms of right to adaptations were not fully engaged. The Council never explained to Mr C what Mr D’s rights were in terms of adaptations or applying for a DFG.
  7. I have considered the different adaptations in more detail.

Car seat

  1. I find no evidence of fault in the Council’s refusal to fund a car seat. The OT made it clear in July 2017 that Mr D had to be transferred by hoist at all times and that there were no car seats suitable for his needs.
  2. I accept the OT appeared to change her position from January to May 2018 as she supported Mr C in the pursuit of a car seat. However, after the assessment in May 2018, the OT reverted back to the original position which was that a car seat was not suitable for Mr D.
  3. The notes show that Mr and Mrs C disagreed with the May 2018 OT’s assessment and the OT then raised the possibility of a safeguarding alert if Mr D was put in the car without his wheelchair.
  4. Following the May 2018 assessment, the Council then consistently kept its advice that Mr D could only travel in his wheelchair which meant either travel by bus or by wheelchair adapted car.
  5. Therefore, I do not find fault in the Council’s decision not to help Mr C to buy the car seat. This decision was based on the OT’s assessment. The OT explained on several occasions why the car seat would be unsafe for Mr D.
  6. I agree that there were five months when the OT did appear open to the option of the car seat. I accept that this may have raised Mr and Mrs C’s expectations but ultimately, I cannot question the professional opinion of an OT that the car seat was not suitable for Mr D.

The hoist

  1. The OT said in May 2018 that a ceiling or wall mounted hoist would be beneficial given the lack of space in the room and that she would request one.
  2. It appears the Council then took no further action about the hoist, because it felt it could wait until the extension was built.
  3. In my view there was evidence of fault in the Council’s actions. The Council had a duty to consider interim adaptations in May 2018. It was not known, at that time, whether the extension would be approved and, in any event, the Council knew that, if the extension was going ahead, this would be a long term project. The Council had a duty to provide interim adaptations when it knew that the long term solution would not be delivered quickly.

The bed

  1. The Council first became aware of the problems with the bed in November 2017. The OT gave advice on how to manage the risk and the family and the OT agreed to wait until after the move to then find a more suitable bed.
  2. The family moved in December 2017 and the moving and handling assessment of January 2018 identified the risk of entrapment and falling out of the bed and gave advice on how to manage the risk.
  3. After the OT assessment in May 2018, the OT then organised demonstrations of the alternative beds in June 2018. But there was delay between June and October 2018 when the Council did not progress the matter and this was fault.
  4. In October 2018 the Council organised further demonstrations of the bed and the matter was further delayed because of the deprivation of liberty issue that had to be resolved. Although these delays were regrettable, I do not find fault as I do accept that the Council had to follow the process.

The extension

  1. The extension is funded from the housing budget rather than DFG, but the Council has confirmed that applications are processed and considered in the same way up to the point of approval for funding. I have considered the complaint up to the point where the housing department approved the funding in October 2018. If Mr C wants to complain about any delay after that date, he can of course pursue this complaint with the Housing Ombudsman.
  2. The OT said in May 2018 that an extension was needed to meet Mr D’s and his family’s needs, but a further feasibility assessment was needed of the house to decide whether an extension was practical. The OT was then allocated to another case. I can find no evidence that the Council took action to progress this further until September 2018 when two OTs attended the property with another officer to decide whether the outlay of the existing building was suited for an extension. There was therefore fault in the Council’s failure to progress the application for adaptations between May and September 2018.

Injustice

  1. To summarise, I have found fault in the lack of active progression of the application. The Council failed to follow the process to apply for adaptations from the outset or to explain to Mr C what his rights were in relation to a DFG. There was delay between May and September 2018 in the progression of the bed and the extension and overall delay in relation to the ceiling hoist.
  2. I have considered the injustice to Mr D, to Mrs C in her capacity as carer and the family as a whole.
  3. In terms of the bed, I do accept that the Council had put in place a plan which explained to the family how to use Mr D’s existing profiling bed as safely as possible to mitigate against any risk while Mr D waited for a new bed. However the bed did not meet fully meet his needs and there was a risk of injury. I recommend a payment of £300.
  4. In terms of the delay in the extension and the hoist, I accept that the Council provided a mobile hoist the carers could use. I have considered the fact that the Council had suggested alternative ways in using the space so that Mr D’s brother moved out of the Mr D’s room and to remove some of the items in the room. However, my understanding is that the Council accepted overall that this would be very difficult, if not impossible, and that the ceiling hoist and the extension were needed to meet Mr D’s needs.
  5. The delay in the extension affected the entire family. Mr C has described the difficulties the family had. The family could not sit together in one room. Mr D often did not sleep during the night. This meant his brother was kept awake as he shared a room with Mr D. Mrs C was additionally affected as she had to go up and down the stairs to provide care for Mr D but this was difficult because of her own disabilities. Mr D’s equipment took up a lot of space and it was difficult to manoeuvre the equipment. Mr C said the children were eating their meals on the stairs. I recommend the Council pays Mr and Mrs C £600 to reflect the delay in progressing the extension.
  6. The delay in the hoist affected Mrs C, who was his main care giver the most. Mr C said Mr D often soiled himself and needed to be showered several times a day or night. This meant he had to be transferred to the wetroom but this was where his wheelchair and hoist were kept as there was no other space to put them. Mrs C had to move the equipment and had difficulty using the mobile hoist in the limited space to then transfer Mr D. I recommend the Council pays Mr and Mrs C £300 to reflect the delay in providing the hoist.

Agreed action

  1. The Council has already acknowledged some of the fault and has said it has appointed an occupational therapy team manager which will allow greater oversight.
  2. The Council has agreed the following actions within one month of the final decision. It will:
    • Apologise to the family in writing.
    • Pay £1,200 to reflect the delay in progressing the provision of suitable adaptations and the extension.
    • Review its policies on adaptations to consider providing timescales within the policies.

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Final decision

  1. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Parts of the complaint that I did not investigate

  1. The Housing Ombudsman investigates complaints about the actions of certain landlords. Local authority’s housing departments fall under the Housing Ombudsman’s jurisdiction. The Council has said that funding for the extension will be provided by the Council’s housing department. The actions of the Council’s housing department are outside of the jurisdiction of the Local Government and Social Care Ombudsman and I have not investigated them. I have only investigated the actions of the Council’s adult social care department.
  2. Mr C says Mr D and the children have suffered an injury because of the lack of space and inadequate equipment. That is not a complaint the Ombudsman can consider. If there has been negligence by the Council resulting in injury, this would be a matter for the court.

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Investigator's decision on behalf of the Ombudsman

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