Summary: The Ombudsman upholds the complaint from Ms X about the delay in assessing her children’s need for adaptations. The Council took too long to allocate an occupational therapist and make a referral to the district council. It also delayed in deciding how much it would contribute to the work. The Council will apologise to Ms X and pay her and her children in recognition of the impact on them all of the delay. It will offer assessments to any other eligible children in the household. The Council will also provide additional training to staff about overcrowding and take action to reduce the time taken to allocate an occupational therapist in future.

The complaint

1. Ms X complains the Council delayed in allocating an occupational therapist to assess her children’s need for adaptations to the family home. She is unhappy there have been further delays in applying for a disabled facilities grant. Ms X says the delay is having a negative impact on the wellbeing of her children and her as their carer.

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The Ombudsman’s role and powers

2. 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)
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 considered the complaint made by Ms X and the documents she provided.
5. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
6. I also considered the Ombudsman’s focus report, ‘Making a house a home: Local Authorities and disabled adaptations’ published in 2016.
7. I have given Ms X and the Council an opportunity to comment on my draft decision.

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What I found

Legislation

8. The Chronically Sick and Disabled Persons Act 1970 places a duty on councils to provide assistance to residents in arranging adaptations to their home, or in providing additional facilities to help them live more safely, comfortably or conveniently.
9. If a child needs specially adapted housing, an occupational therapist will assess them to decide what their needs are. Occupational therapists usually work for the county council. They need to take account of other professionals’ opinions to come to a view on the child’s needs. Once a county council has assessed the child’s needs, it needs to pass this information to the local housing authority.
10. Under the Housing Grants, Construction and Regeneration Act 1996 local housing authorities, in this case a district council, can award Disabled Facilities Grants (DFG) to people whose disability means their home needs adaptation. If the person applying meets the qualifying criteria the council must award the grant. The maximum grant is £30,000. Grants for children are not means-tested. Councils can decide to give more help if they think it is necessary.
11. ‘Delivering Housing Adaptations for Disabled People: a detailed guide to related legislation, guidance and good practice’ recommends target timescales for each stage. There are three stages:
• Stage 1 is from the enquiry at first point of contact to the Occupational Therapist (OT) referral. Their recommendations are provided to the adaptation service (landlord, housing association or grant provider).
• Stage 2 is from the OT recommendation to approval of the scheme.
• Stage 3 is from the approval of the scheme to the completion of the works.
12. The timescales vary according to whether the work is ‘urgent’ or ‘non-urgent’. In urgent cases the target timescale from start to finish is 55 days. For non-urgent cases the process should ideally complete within 150 days.
13. District and county councils should work together to provide a well-coordinated DFG service. They should keep service users informed about progress including any problems arising. The Ombudsman considers the duty to meet assessed eligible needs is only met when adaptations have been satisfactorily finished.
14. The law on overcrowded households is in Part X of the Housing Act 1985. Statutory overcrowding is calculated by lack of rooms or lack of space. The law provides a calculation according to the floor space and the number of people.

Nottinghamshire County Council’s policy

15. The Council’s policy guidance says requests for support are made to the duty team which makes an immediate decision whether to progress to an occupational therapy referral.
16. All referrals go on to an initial assessment which is completed within ten days. The outcome of the initial assessment is either no further action, a specialist occupational therapy assessment or ‘fast track’.
17. If a specialist assessment is required, a senior occupational therapist or manager will decide on the level of priority. Priority one is for children with safeguarding needs. Priority two is for children with complex needs but who are not considered to be at risk if the occupational therapy assessment is not immediate.
18. Specialist assessments are allocated within six months of the initial assessment decision. The Council does not give a timescale for completion of the assessment.

What happened

19. Ms X has two young children, C and D, with a rare progressive condition. Both children need 24-hour monitoring and they are supported by several pieces of equipment which alert their carers to any change in their condition. They receive nutrition via a central line which puts them at high risk of infection. The children need prompt access to their local hospital if there is a sudden decline in their health.
20. The children live with their mother and siblings in a home owned by Ms X and her former partner. C sleeps in the dining room, and D sleeps in the living room. Ms X sleeps on a sofa between them. Ms X’s two youngest children share the bedroom on the ground floor while the remaining siblings share the bedrooms on the first and second floor.
21. The children needed more specialist equipment to enable Ms X and others to continue to safely care for them. The living arrangements meant C and D had no privacy or space to spend time with their family. In early September 2016, Ms X contacted the Council asking for adaptations to her home.
22. The Council completed its initial assessment, of C only, on 15 September 2016 and recommended a specialist assessment. It decided the case was ‘Priority two’.
23. The Council sent letters to Ms X on 1 December 2016 and 1 March 2017 as the case was still awaiting allocation. The case was allocated to an occupational therapist in early March 2017, within the six-month timescale set by the Council’s policy guidance.
24. During a home visit in March 2017, the occupational therapist noted D also had significant needs that needed assessment. She suggested carrying out a joint assessment of both children.
25. Both C and D had several hospital admissions during this period. The occupational therapist was also waiting for information from health professionals to inform the assessment. She completed the assessment in September 2017.
26. In its response to me, the Council acknowledged it could have completed the referral for DFG to the district council at this point. It said it didn’t do so because the district council required the occupational therapist to carry out a joint visit with one of its technical officers.
27. The actions of the district council are subject to a separate investigation by the Ombudsman.
28. An internal panel was held on 9 October 2017. The Council agreed for the occupational therapist to arrange a joint visit with a technical officer to consider a ground floor bedroom and bathroom adaptation.
29. The visit took place in the same week. The technical officers asked the occupational therapist to delay presenting the case to the district council’s Disabled Facilities Panel, which considers all applications for grants likely to exceed £10,000. This was so they could seek further advice from the district council’s planning department and look at whether they could seek two separate grants for the children.
30. At the end of November 2017, the occupational therapist submitted her report to the Disabled Facilities Panel. In her report she set out the children’s complex needs. The report outlines her recommendations to meet those needs. It does not make any reference to relieving overcrowding.
31. The first set of plans, showing alterations across the ground, first and second floor of the property, was issued by the district council in December 2017.
32. While the district council explored the possibility of adaptations and alternatives to adapting the property, the occupational therapist kept in regular contact with Ms X and officers on their progress.
33. In January 2018, the occupational therapy manager contacted the local clinical commissioning group to ask if it could provide any support for the adaptations given the extensive health needs of the children. The clinical commissioning group said it could not use its funding for adaptations.
34. The occupational therapist asked for a multi-agency meeting due to the lack of progress. This took place in April 2018. At the meeting, the district council said it could not adapt the current property and proposed several alternatives to Ms X. Ms X was very unhappy with the proposals and shared her concerns with the occupational therapist.
35. At the beginning of May 2018, the Council told Ms X it would support her with renting a more suitable property for six months while other options were being explored. The occupational therapist and Ms X continued to look out for suitable rental properties over the following months though it appears none became available.
36. Around the same time, the occupational therapist had a discussion with a senior manager at the district council. She asked if the district council could draw out a plan which showed the maximum space available on the existing property so they could look at any compromises which could be made on space. The district council agreed.
37. In mid-May the district council sent a new set of plans to Ms X without consulting the occupational therapist. The plans did not meet the children’s needs.
38. At the end of May, the Council spoke to Ms X about the possibility of appointing a lead worker to act a single point of contact. The Council suggested the lead worker should be impartial as officers from both councils were heavily involved and invested in the case. Although the Council followed this up with Ms X who agreed it would be a good idea, no lead worker was appointed.
39. The district council sent a further set of plans in June 2018, which both Ms X and the occupational therapist felt largely met the children’s needs with some minor adjustments. The plans showed changes across all three floors. Discussions began between the Council and the district council about funding an architect and a drainage survey to take the proposals forward. The district council eventually took responsibility for this.
40. Throughout the summer of 2018 there appeared to be confusion about whether the Council could apply for some funding from an integrated health and social care budget. Eventually it was told this fund was not available for adaptations.
41. The occupational therapist formally sent referrals to the district council for DFGs for both children on 24 August 2018. The recommendations mirror those in the submission to the Disabled Facilities Panel in November 2017, with the added proposal to create more space in the living room to meet the children’s social needs. The referrals say the property is overcrowded and it would not be possible to progress adaptations without addressing this. The referrals recognise that a DFG cannot be used to address overcrowding.
42. In October 2018 the district council told the Council it would only fund the adaptations to the ground floor of the property. The Council queried this. It asked the district council if it was sure the children’s needs could be met with the changes to the ground floor without addressing the housing needs of the rest of the family. It said it needed to understand how much the scheme would cost so it could decide about contributing to it.
43. The district council said the DFG was intended to meet the needs of C and D only. It said it needed written confirmation from Mrs X to say she was happy to proceed with looking at the adaptations to the ground floor only before it could generate costs.
44. There is no evidence either council sought this written confirmation directly from Mrs X or informed her of the district council’s decision.
45. A fortnight later, the occupational therapist emailed the district council asking it to generate costs for the work to the ground floor, as well as separately costing up the works to the first and second floor.
46. The district council agreed to ask an architect to draw up plans for the ground floor so it could continue with the full grant application. It said it would ask for upper floor plans at the same time.
47. There then followed a period of limited communication from the district council, despite the occupational therapist and her manager making repeated requests for an update.
48. From January 2019 the situation progressed at greater speed with the appointment of an architect. Further plans were drawn up for alterations to all three floors of the property and these secured planning permission in early May 2019. The district council maintains its position that it will only fund the adaptations on the ground floor, which it considers will meet the needs of C and D. The plans are currently subject to a tendering process.
49. The Council has now confirmed it will provide a financial top up for the provision of eligible works through the DFG. It decided this before formal quotes have been returned. It has also agreed to provide financial support towards any interim housing arrangements while the works are carried out.

Analysis

50. Credit should be given to the occupational therapist in this case who clearly strived to achieve the best possible outcomes for the family and advocated strongly on their behalf.
51. However, the Council took too long to make a referral to the district council. The guidance says this should take 20 working days; the Council took almost 500 working days. Even allowing for some of the delays which were outside the Council’s control, the time taken from Ms X first requesting support to the referral for DFG being completed is unreasonable. This has contributed to C and D spending too long living in accommodation which does not met their needs.
52. I consider the Council should have allocated the case within three months with a further three months for assessment. Holding an internal panel, carrying out a joint visit, and sending a report to the Disabled Facilities Panel should have taken less than eight weeks. The referral to the district council for DFG should have followed immediately afterwards. With this in mind, the delay in this case amounts to 66 weeks.
53. It is unclear at what point the proposals for adaptations changed from a ground floor bedroom and bathroom to a larger scheme. The Council should have been aware the DFG could only be used to meet the needs of C and D, and supporting a wider scheme of alterations served to unreasonably raise Ms X’s expectations. This was fault.
54. The Council did not seek informed consent from Mrs X before telling the district council to proceed with drawing up costs across all three floors of the property. As a result, she lost an opportunity to make an informed decision about continuing with the DFG process. This also contributed to her raised expectations of what could be delivered via the DFG process. This was fault.
55. I cannot find fault in the Council’s decision to only provide a financial top up for the works to the ground floor. It has a duty to assist residents in arranging adaptations to their home, but not to relieve non-statutory overcrowding.
56. However, the Council took a long time to decide it would only contribute to the agreed works. Had it decided sooner, Ms X would have been better informed about the shortfall in funding and may have been able to begin seeking alternative sources of funding sooner.
57. It is unclear what definition of overcrowding the Council has used in assessing Ms X’s property. It does not meet the statutory definition of overcrowding. The Council has repeatedly referred to Ms X’s home as overcrowded and this appears to have led to confusion and conflict in its discussions with the district council. The insistence on developing plans to address the alleged overcrowding has raised Ms X’s expectations and created unnecessary delay.
58. The Council proposed a lead worker to support Ms X with communicating with the various parties involved but does not appear to have followed up on this. Ms X would have benefitted from having another officer to support her with liaising between the two councils. This would have relieved the pressure on her, and on the occupational therapist who appears to have fallen into the role of lead worker by default. This was fault.

Agreed action

59. Within four weeks of the final decision, to remedy the injustice caused by the faults identified the Council will:
• confirm with Ms X whether any of her other children might benefit from an occupational therapy assessment and if so carry out these assessments within three months.
• apologise to Ms X and pay her £500 in recognition of the distress and frustration caused by raised expectations and delay.
• pay £6,600 to Ms X for the children in recognition of the prolonged period C and D have been living in unsuitable accommodation; and the effect on the other children of living with restricted living space due to the Council’s delays. In calculating this, I have noted our guidance on remedies which says where a complainant has been deprived of modifications which would have improved his or her daily life, we will usually recommend a payment of up to £350 per month. I have proposed a sum based on £100 per week in recognition of the number of children affected.
60. Within eight weeks of the final decision, the Council also agrees to:
• issue guidance to staff on the statutory definition of overcrowding and remind them to be cautious about describing properties as overcrowded without first assessing them against this definition.
• remind staff to keep a written record of any meetings with DFG applicants.
• ensure that for future DFG referrals, it agrees with the district council who will act as key contact and confirms this in writing with the applicant.
61. Within six months of the final decision, the Council has agreed to review its resources, targets and procedures with a view to reducing the time taken to allocate an occupational therapist.

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Final decision

62. For the reasons given in the Analysis section of this decision, I uphold this complaint.

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Investigator's decision on behalf of the Ombudsman