London Borough of Barking & Dagenham (19 000 211)

Category : Adult care services > Disabled facilities grants

Decision : Upheld

Decision date : 24 Feb 2020

The Ombudsman's final decision:

Summary: There was no fault in the Council’s decision to fund a stairlift and walk-in shower for Ms B as the Council acted in line with the law on disabled facilities grants. However, the Council failed to complete a social care assessment and this was not in line with the Care Act and Care and Support Statutory Guidance which requires councils to complete social care assessments regardless of any care the person is already receiving. The Council will apologise and complete a social care assessment within two months of this statement.

The complaint

  1. Mr A complains about London Borough of Barking and Dagenham (the Council). He says his mother Ms B requires a ground floor toilet and shower and the Council refused to fund this, ignoring the advice of Ms B’s GP. He also complains about the financial contribution towards the grant.
  2. Nr A also complains about the Council not spending all the budget for Disabled Facilities Grants.

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What I have investigated

  1. I have investigated the first complaint. My reasons for not investigating the second complaint are at the end of this statement.

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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. We provide a free service, but we must use public money carefully. We may decide not to start or continue with an investigation if we believe the fault has not caused injustice to the person who complained, (Local Government Act 1974, section 24A(6), as amended)
  3. 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)
  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(i), as amended)

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How I considered this complaint

  1. I considered Mr A’s complaint, the Council’s responses to his complaint and documents described later in this statement. I also considered comments on a first draft of this statement.

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What I found

Relevant law and guidance

  1. The Care Act 2014 requires a council to carry out a social care assessment for any adult with an appearance of need for care and support.
  2. After the assessment, the council should decide whether the person it has assessed is eligible for care, using national eligibility criteria.
  3. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person.
  4. Statutory Guidance, (Care and Support Statutory Guidance) says a council should undertake an assessment for any adult with an appearance of need regardless of whether the person has eligible needs, their financial situation and regardless of any support being provided by a carer. A council is not required to meet eligible needs that are met by a carer, but it should record this is the case as it ensures all the person’s needs are recorded. This is important so the council can respond if the carer is unwilling or cannot continue to carry out their caring role.
  5. Disabled Facilities Grants (DFGs) are provided under the Housing Grants, Construction and Regeneration Act 1996. The law says a DFG must be given for the purpose of providing or improving access to a toilet, washbasin, bath/ shower.
  6. Before issuing a grant, the council must be satisfied:
    • The work is necessary and suitable to meet the disabled person’s needs. The council can distinguish between what is desirable and what is needed and for which grant support is justified
    • The work is reasonable and practicable depending on the age and condition of the property.
  7. DFGs are means-tested and people have to make a contribution towards the cost, unless they are on particular state benefits. The details of the means test are set out in regulations. The Council uses a software computer application to carry out the financial calculations. The calculation takes into account a person’s income and capital. If they have income and capital above an amount for their weekly living needs, then this ‘excess income’ is apportioned into one of four bands to calculate their contribution.
  8. In Barking and Dagenham, the process for deciding who gets funding for disabled facilities grants is that an occupational therapist assesses the person’s needs and submits a request to the disabled facilities grants panel with recommendations. The panel assesses the recommendations, medical evidence and issues a decision.

What happened

  1. Mr A complained to us in 2018 about the same issue. (case reference 18005463). We declined to investigate the complaint because we considered the Council’s offer of a fresh assessment by an occupational therapist (OT) was an appropriate way to resolve this complaint. Mr A is unhappy with the new OT assessment and complains to us again.
  2. An OT visited Ms B and completed a specialist assessment at the end of October 2018. The reason for the assessment was “to review Ms B’s needs and concerns raised about her managing the stairs and bathing”. The OT noted:
    • Mr A and other family members (one of whom lived next door) met Ms B’s support needs including: preparing her meals, shopping, domestic tasks, maintenance of the garden and home and paying bills
    • She observed Ms B walking indoors using a stick, she used her freedom pass on buses
    • Ms B reported urinary incontinence
    • She only attempted to climb the stairs one to two times a day due to the effort involved. There was a commode downstairs, which Ms B used. She did not want to use incontinence pads.
    • Ms B’s health issues as reported by her and the family were: muscle cramps in the legs, joint pain, dizziness due to blood pressure issues, frequent urge to urinate including some incontinence. Ms B also had a fall some years ago resulting in broken bones.
    • Information from Ms B’s GP indicated there was no health reason Ms B could not use a stairlift and she was not receiving any treatment for incontinence.
    • The OT observed Ms B walking up and down two steps at the front of her house (but not the full flight of internal stairs to the bathroom) using two feet per step.
    • The OT observed Ms B using her stick to support her to sit on the bed and she lifted her legs on to the bed unaided. She could move from sitting to standing on a chair using a stick (the chair also had a recliner action)
    • Ms B had limited access to the toilet and bath which were upstairs. She bathed on her own with some difficulty. She dressed independently.
  3. At the start of November, Mr A emailed the OT raising queries and concerns about the assessment. He asked the OT when a decision would be made about the DFG and said it was not fair to ask his mother to go up and down the stairs as this caused her pain and discomfort. Mr A said the Council had failed to contact Mrs B’s GP and was delaying. The records indicate the OT wrote to Ms B’s GP at the start of November.
  4. The OT replied to Mr A’s email saying she had contacted Ms B’s GP and was waiting for the GP’s reply and she needed to see Ms B again. Mr A replied with some dates for a visit. He said again it was unreasonable to ask Mrs B to go up the stairs.
  5. The OT said in an internal email that she needed to see Mrs B again and had called Mr A to arrange an appointment. The OT said it would be difficult to put the case to the funding panel without seeing Mrs B walk up and down the full flight of internal stairs and she needed to measure Mrs B for the stairlift.
  6. Ms B’s GP wrote to the Council. The letter set out her medical conditions and the medicines she took. The GP said Ms B had not had any investigations into her incontinence and there was no history of blackouts, seizures or recent falls and no reason she could not use a stairlift safely.
  7. The OT visited Ms B at home at the end of November. Ms B agreed to walk up the stairs in her home and the OT noted she climbed up and down the flight of stairs two feet each step, leading with the right leg and using the rails for support and taking breaks when needed. The OT took measurements of Ms B seated on a dining chair. The OT noted Ms B wanted a downstairs extension and advised that the panel would make a decision based on the DFG law.
  8. The OT recommended a stairlift and a level shower. The funding panel approved the OT’s recommendations.
  9. Mr A was unhappy and appealed the funding panel’s decision to provide a stairlift and level shower. He said the Council had not considered relevant evidence. It had not taken into account Ms B needed to wear a head scarf for religious reasons which could be a safety risk using the stairlift. He said Ms B needed a long-term solution to her needs and the Council did not have regard to her needs under the Care Act 2014.
  10. Mr B provided a letter from Ms B’s GP which said Ms B was suffering from incontinence and urine frequency; she had to go to the toilet often due to her medical condition and needed a shower and toilet downstairs. The case notes indicate the OT spoke to Ms B’s GP in February 2019 to discuss the letter. The GP told her Ms B’s issues were age related stress incontinence. The OT advised the GP the Council would expect Ms B to use pads and there would need to be additional medical evidence of a severe continence issue before the Council would fund a downstairs toilet.
  11. The Council responded to Mr A’s appeal saying:
    • There was no reason Ms B could not use a stairlift and the GP had reported that no investigations have been made regarding urinary incontinence issues to support the request for an additional toilet facility.
    • The recommendations for a stairlift and level access shower on the first floor would meet Ms B’s present level of needs.   
    • Ms B needed to confirm she wanted the adaptations it was offering and then she needed to complete an application for a DFG, which included a financial assessment.
  12. Mr A completed the financial form, providing financial information and the Council assessed Ms B’s contribution. The Council advised Mr A of Ms B’s contribution, explained it used a software package to calculate the contribution and attached a link to a website for the company which provided the software and which contained information about how the calculator and means test worked. Mr A queried how the Council calculated the contribution and a manager offered a meeting with him to discuss this. Mr A declined the meeting and said the Council had to provide ‘written proof’.
  13. Mr A complained to the Council. The response said:
    • It had explained how the charge had been calculated
    • The OT considered the evidence from the GP.
    • The Council considered continence issues could be managed using pads and the Council would not fund an extension for a ground floor toilet because of incontinence.
    • A stairlift and level access shower met Ms B’s current needs.
  14. Mr A remained unhappy with the Council’s decision and complained to us.

Comments from the Council and from Mr A

  1. The Council told me the OT did not carry out a social care assessment of Ms B when completing the specialist assessment. This, it says, was because Mr A told the OT the family met all Ms B’s care and support needs including assisting with meal preparation, shopping, domestic tasks, maintenance of the home and bill paying.
  2. The Council also told me it had considered whether Ms B could use a stairlift and decided she could do so safely. It had relied on the OT’s assessment of her ability to perform daily activities (moving around and other daily acts) and her medical history from the GP.
  3. Mr A considers the Council’s suggestion that Ms B should use incontinence pads is derogatory and an insult to her dignity. He also considers the Council needs to evidence Ms B could use the stairlift and needs to carry out a risk assessment.

Was there fault?

The Council’s decision on funding through the DFG scheme

  1. When deciding whether to fund adaptations through the DFG scheme, councils have to decide whether the work is necessary and suitable to meet the person’s needs. A council does not have to fund a particular adaptation just because a person desires it. I consider the Council acted without fault and in line with the law described in paragraphs 13 and 14 when it refused Mr A’s request for an extension. This is because the Council decided a stairlift and an adapted shower in the existing bathroom would meet Ms B’s needs and therefore an extension was unnecessary. Mr A does not like or agree with the decision, but as I consider it was made without fault, I have no grounds to question it.
  2. I am satisfied the Council considered the evidence from Ms B’s GP, including the GP’s recommendation for downstairs facilities. The Council does not have to follow the GP's recommendations, although it should consider them, and the records indicate it did. The decision for the Council about what is necessary and suitable to meet Ms B’s needs is for the council to take (and not the GP, Mr A or the Ombudsman).
  3. There was no fault in the Council suggesting Ms B might use incontinence pads to protect against stress/urgency incontinence. I do not share Mr A’s view that this is insulting. It was a practical suggestion that could be seen to protect and promote Ms B’s dignity.
  4. The Council did not have to assess the risk of Ms B using a stairlift. It would not be practical for it to do so without the stairlift already being installed in the property. The Council was entitled to rely on the assessment and view of the OT (backed by evidence from the GP) which was there was no reason Ms B could not use a stairlift.
  5. DFGs are means tested and there is no fault in the Council requiring a contribution from Ms B or in the way it applied the means test. The Council offered a meeting to go through the means test and this was an appropriate response when Mr A queried how the Council had reached the figure.
  6. The Council offered to contribute funding towards the extension equivalent to the cost of the stairlift and level shower if Ms B wanted to arrange her preferred scheme (the extension). That was an appropriate response and in line with the law and so there is no fault.

Duties under the Care Act 2014

  1. The Council told me it did not complete a social care assessment because Ms B’s family were meeting her care needs. This was fault. The Care Act requires the Council to assess the social care needs of anyone who has an appearance of need. Statutory guidance, which we expect councils to follow, says this is regardless of a person’s finances or of any informal care they may already be receiving from family. The failure to complete a social care assessment was therefore fault.

Did the fault cause injustice?

  1. The failure to complete a social care assessment meant Ms B had a loss of a chance to have her eligible needs considered. I cannot say whether she would be eligible for care and support. However, the failure to complete a social care assessment means there was a lack of proper consideration of whether the Council should provide or arrange services or funding under the Care Act framework.

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Agreed action

  1. The Council will, within two months of my final decision:
    • Apologise to Ms A and Mr B
    • Complete a social care assessment for Ms A. In doing so, the Council should make a decision about Ms A’s eligibility for social care services and if she has eligible needs, it should provide her with a care and support plan.
  2. I will require evidence of compliance.

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Final decision

  1. There was no fault in the Council’s decision to fund a stairlift and walk-in shower for Ms B as the Council acted in line with the law on disabled facilities grants. However, the Council failed to complete a social care assessment and this was not in line with the Care Act and Care and Support Statutory Guidance which requires councils to complete social care assessments regardless of any care the person is already receiving. The Council will apologise and complete a social care assessment within two months of my decision.
  2. I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. Mr A also complains about the Council’s misuse of the DFG budget. I have not investigated this complaint because there is no personal injustice.

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Investigator's decision on behalf of the Ombudsman

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