Summary: There was fault in the way the Council assessed and reviewed Mr X’s bathing needs and recommended adaptations to his home. It did not properly consider and respond to some concerns he raised during the assessment about his need to take baths for pain management. During the investigation the Council agreed to provide a satisfactory remedy.

The complaint

1. Mr X complains that the Council rejected his request for a Disabled Facilities Grant to install a specialist bath to meet his bathing needs following an assessment by a Housing Assessment Officer. The Council decided his needs could be met by installing a level access shower instead. Mr X disagrees with this recommendation. He says the Council did not consider his need to take regular baths as part of his pain management regime. It will have an adverse impact on his wellbeing if he cannot do this.
2. Mr X is struggling to use his existing bath and bath lift safely. The Council accepts the current facilities are unsuitable.

Back to top

The Ombudsman’s role and powers

3. 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).
4. 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(a), as amended)

Back to top

How I considered this complaint

5. I have discussed the complaint with Mr X and considered all the correspondence he sent me.
6. I considered the Council’s response to my enquiries and documents from its records.
7. I have written to Mr X and the Council with my draft decision and considered their comments.

Back to top

What I found

8. Mr X is in his seventies and lives alone in a bungalow. He has a long-term degenerative disease which affects his spine. He also has other chronic medical conditions, including arthritis in the hands, knees, hips and ankles and oedema which causes his legs to swell. He uses a manual wheelchair indoors and a powered wheelchair outside. He can only mobilise over a very short distance around his home by using grab rails to support him.
9. Mr X’s range of movement is severely limited by these medical conditions and he says he is in constant pain.
10. Mr X has been finding it increasingly difficult to use the standard bath and over bath shower. He already has grab rails in the bathroom, a bath lift and a bath step. Mr X has a daily call from a carer to meet some of his personal care needs. But he wants to maintain his independence and dignity by bathing without assistance from others.

The relevant law and guidance

11. The Care Act 2014 requires councils that are social care authorities to assess the needs of an adult who appears to need care and support. They must assess the individual’s needs, how they impact on their wellbeing and the outcomes the person wants to achieve in day to day life. The process must be “person-centred”, involve the individual and any carer the person may have, or any other person they want to be involved (such as a health professional).
12. Councils which are local housing authorities have a duty under the Housing Grants, Construction and Regeneration Act 1996 to provide a Disabled Facilities Grant to disabled people who need certain home adaptations. Before approving a DFG, the council must be satisfied the work is necessary and suitable to meet the needs of the disabled person, and that it is reasonable and practicable to carry out the work. Usually an Occupational Therapist (OT) or Occupational Therapy Assistant (OTA) will assess the disabled person’s needs and the best way to meet them. The local housing authority must consult the social care authority, and have regard to that advice, but it will decide whether to approve the DFG and the type of adaptations that should be provided.
13. A DFG can be awarded to fund works to enable a disabled occupier to have access to a bathroom, or to enable him or her to use a bath, or shower or both.
14. The Home Adaptations Consortium has published a good practice guide on home adaptations for practitioners. In a section headed Key Principles it says:

“The purpose of a home adaptation is to modify the home environment in order to restore or enable independent living, privacy, confidence and dignity for individuals and their families. The focus is therefore on identifying and implementing an individualised solution to enable a person living within a disabling home environment to use their home more effectively…”

What happened

The arrangements in Warwickshire for assessing housing adaptations and processing applications for Disabled Facilities Grants

15. Warwickshire County Council (WCC) has a team of OTs and OTAs who carry out needs assessments under the Care Act 2014 for disabled people who are having difficulties with daily living activities. They can provide equipment and strategies to overcome these difficulties and maintain independence.
16. If the OT or OTA considers the person needs home adaptations to enable them to be more independent and safe, they make a referral to a multi-agency service, called the Home Environment Assessment and Response team (“HEART”), which is hosted by Nuneaton & Bedworth Borough Council.
17. HEART is a formal partnership between Warwickshire County Council (the social care authority), and the five district or borough councils in the county that are local housing authorities. Staff from each council are seconded to HEART. All the councils have granted powers to Nuneaton and Bedworth Borough Council to enable it to assess and approve Disabled Facilities Grants and carry out needs assessments under the Care Act 2014 on their behalf.
18. One member of the HEART team, either an Occupational Therapist or a Housing Assessment Officer depending on the complexity of the customer’s needs, carries out the assessment and applies the Care Act and DFG criteria.
19. An agreement sent to Mr X about HEART says:

“HEART is an advisory and support service to assist Warwickshire residents to improve, repair or adapt their homes to protect and improve their health, safety and wellbeing.”

The key events

20. On 20 July 2018 an Occupational Therapy Assistant (OTA) from WCC visited Mr X to complete a core assessment under the Care Act 2014.
21. During the assessment, the OTA observed Mr X transferring to the bath. She noted he found it extremely difficult to lift his legs over the side of the bath. He told her he was in pain during the transfer and she noted he was short of breath.
22. Mr X told the OTA he liked to take a daily bath as part of his pain management regime. He clearly stated his preference for a walk-in bath and said he did not want a level access shower. The OTA said she was not sure if this would be agreed but she would pass on his request to HEART.
23. The OTA made the referral to HEART for a bathing needs assessment on the same day. She commented that Mr X could not bend sufficiently to move the bath step and it was a trip hazard. She said Mr X was having great difficulty moving his legs over the side of the bath.
24. On 6 September a Housing Assessment Officer at HEART, whom I shall call Officer A, called Mr X in advance of her visit. Mr X said the existing bath lift was no longer suitable. She said in these circumstances she would consider installing a level access shower. Mr X rejected this suggestion. He said he wanted a specialist bath because he needs to take a daily bath to manage his pain. He had details of a particular model that had a bath seat which lifted, turned and lowered the user into the bath. Officer A told Mr X HEART did not provide this type of bath. Mr X asked her to consider this option. He acknowledged that would involve making some structural alterations to move the bathroom wall. Officer A said the Housing Association would need to give permission.
25. On 18 September Officer A visited Mr X. He showed her drawings he had prepared showing the proposed layout of the bathroom. He also gave her information about the specific bath he would like to purchase and install with a Disabled Facilities Grant. The bath had an integrated seat transfer and leg lifting facility and extra wide seating. The brochure says it is compact enough to fit into the space of a traditional bath.
26. Mr X’s sketch drawing included a level access shower and the new bath. It involved moving the existing internal bathroom wall to enlarge the bathroom and reposition the boiler cupboard in the adjoining hallway.
27. Mr X told Officer A he was only bathing three to four times a week because he found it so difficult to lift his legs over the side of the bath. He wished to take a long bath every evening, before going to bed, because he found that helped with pain management. He told Officer A he had previously been referred to a Pain Management Clinic before but it had not been much help.
28. Officer A observed Mr X doing bath transfers and noted that he really struggled to do this. She took measurements and photographs of the existing bathroom layout.
29. Following her visit, Officer A discussed the case with the HEART team manager. They agreed a level access shower would meet Mr X’s needs.
30. On 24 September Mr X contacted Officer A to ask if she would accompany him when he trialled the specialist bath at a local care home. She said she needed to discuss his case with her manager first.
31. Two days later, Officer A called Mr X to tell him the recommendation was still for a level access shower. Mr X disagreed and said HEART was simply going for the cheapest option rather than one that would meet all his needs. Officer A suggested Mr X should speak to his GP about pain relief medication and management. According to her notes, Mr X refused to do this. Mr X says this is not an accurate record.
32. On the following day, Officer A sent Mr X a letter to confirm the recommendation for a level access shower. She asked him to let her know if he accepted this recommendation so she could progress his application for a DFG.
33. On 28 September Mr X wrote to Officer A to say he wished to appeal against her decision. He said the recommendation was based on an assumption about his long-term bathing needs rather than a person-centred assessment of his current needs.
34. Having received no reply, Mr X sent a further letter to Officer A on 22 October 2018 to ask for it to be considered under the Council’s complaints procedure. The Council acknowledged this letter on 24 October.
35. On 7 November the manager of the HEART team replied. She is an experienced Occupational Therapist. She told Mr X she had reviewed the case with the Housing Assessment Officer who visited on 18 September and another senior officer in the team. She was confident that a level access shower would meet Mr X’s current and long-term needs. She said the Housing Assessment Officer had concerns about whether Mr X could safely transfer on and off the seat of his preferred bath because it was higher than the existing bath seat. She also said Mr X had not tested the bath. Installing a level access shower may involve moving the bathroom wall to create space, but she said it would require fewer alterations than work to install a new bath. She said a level access shower was a necessary, appropriate and practicable recommendation.
36. The Council has no contemporaneous written record of the review carried out by the three officers. In response to my enquiries. it said they did not consider they needed any further information. It says they considered the following matters:
• The safety of Mr X carrying out bath transfers using a bath lift;
• The long-term use of a facility which is integral to a specific model of bath;
• The benefits and disadvantages of a level access shower compared to a bath to meet his current and future bathing needs and physical ability;
• The criteria for awarding a DFG.
37. On 8 November Mr X wrote to the HEART team manager asking for his complaint to be escalated to the next stage. He wrote again on 1 December 2018 to chase up a reply. The Council received the second letter, which was sent by registered post, on 5 December.
38. On 15 December Mr X asked the Council to confirm it had received the second letter. After a further exchange of emails, the Council confirmed a senior manager would now consider it as a Stage Two complaint. It aimed to reply within 10 working days.
39. The Council says it received Mr X’s letters dated 22 October 2018 and 1 December 2018 but it has no record of receiving the others.
40. On 21 December the Head of Service for HEART replied to Mr X’s Stage Two complaint. He confirmed the provision of a level access shower would meet Mr X’s assessed needs. He said it would be practicable to install one. He said a DFG could not be paid to provide a level access shower and bath, as shown in Mr X’s drawing, as one facility would be sufficient to meet his bathing needs. He said:

“You have mentioned that you used your bath to assist with pain relief but declined to seek advice on alternative management techniques from your GP “.

41. The Head of Service confirmed he agreed with the recommendation for a level access shower and asked Mr X to inform HEART if he wished to proceed. He said if Mr X continued to use his bath, that would pose a risk during transfers and underlined this had not been agreed by HEART. The Head of Service signposted Mr X to the Ombudsman if he disagreed with the final response to his complaint.

Mr X’s views

42. Mr X says he needs to soak in a hot bath every day to help manage his chronic pain. He has a degenerative condition, and his pain levels are likely to increase over time. He says his GP refused to give him any supporting medical evidence and HEART did not seek his consent to contact his doctor.
43. Mr X says he did not tell Officer A that he declined to consult his GP. He has had a degenerative condition for many years and says his GP and consultant can do nothing more to help with pain management. He also said the Council did not properly consider his needs as an individual. He considers it would be safe to do transfers using his preferred bath because it has built-in safety features.
44. Mr X says a level access shower would not meet his need for a bath for pain management. He found a suitable bath incorporating a bath lift and a mechanism for lifting his legs over. He believes the Council rejected this option purely because it was too expensive.
45. Mr X believes he was offered a level access shower as an “off the peg” solution without proper consideration about whether it would meet his needs. He thinks cost was the main factor. He feels his individual needs were not properly considered and assessed. He has commented that the review was an office-based exercise and nobody came out to reassess him.
46. In response to my draft decision, the Council accepted the review was not properly documented and it did not communicate the reasons for its decision at the review stage clearly to Mr X. If it had done this, that may have enabled officers to have further discussions with Mr X. It also accepts it may have been helpful to consider medical evidence at this stage. It does not accept there was fault in the way it carried out the original bathing needs assessment.
47. The Council told me HEART is introducing a robust documented review procedure. It will give feedback on the reasons why decisions are taken and provide the opportunity for additional information to be considered at the review stage.

Analysis

48. The Ombudsman cannot assess Mr X’s bathing needs and decide on the most appropriate adaptations. That is a decision the Council must make following a full person-centred assessment of his needs. And the Ombudsman cannot criticise the merits of a decision that was properly made simply because the service-user disagrees with it.
49. The Council is entitled to recommend an adaptation that provides the most cost-effective way to meet the assessed needs. So it is not fault for the Council to tell Mr X it will not approve a DFG to provide a new bath and a level access shower when one of these facilities would meet Mr X’s bathing needs.
50. However, I have two concerns about the Council’s handling of Mr X’s case. First, I have not seen evidence that the Council properly considered and addressed Mr X’s statement that he to take a daily bath for pain relief. Nor is it clear that the Council had regard to the impact on his wellbeing if he could no longer take baths for pain management purposes. Mr X repeatedly raised this concern during the assessment and in his subsequent complaint. I consider it would have been appropriate to seek and consider medical evidence about his pain relief medication and pain management regime.
51. Secondly, there is no contemporaneous written record of the review carried out by the three officers in HEART following Mr X’s Stage One complaint. So, it is difficult to be sure that Mr X’s wish to take baths for pain management was properly considered. It also means there is no written record to show officers had regard to the impact on Mr X’s wellbeing if the bathing option was no longer available.
52. For these reasons, I find there was fault at the assessment and review stages. The injustice to Mr X is that he cannot be satisfied the decision was made following consideration of all the relevant factors.

Agreed action

53. In response to my draft decision, the Council offered to arrange for a senior Occupational Therapist to carry out a new bathing needs assessment because of the time that has elapsed since the July 2018 assessment. As part of the new assessment, the OT will seek Mr X’s consent to contact his GP for medical evidence to inform its decision-making. The Council will pay if the GP charges a fee for this service. It will then decide the most appropriate way to meet Mr X’s assessed bathing needs in the light of the new OT assessment and medical evidence.
54. The Council will make a written record of its decision-making and analysis of the evidence. It will write to Mr X to inform him of its decision and the reasons.
55. The Council will arrange the new assessment within one month of this decision.

Back to top

Final decision

56. I have completed the investigation and found fault causing injustice. I am satisfied that the Council agreed to provide a suitable remedy during the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman