Durham County Council (19 009 078)

Category : Adult care services > Disabled facilities grants

Decision : Upheld

Decision date : 09 Feb 2021

The Ombudsman's final decision:

Summary: Miss B complains the Council has not completed adaptions to her home. She says the lack of adaptions has a significant impact on her quality of life. Miss B says the Council delayed in agreeing an adaption plan, has declined to provide additional funding and did not properly respond to her complaint. The Ombudsman finds fault in how the Council investigated this matter at stage two of its complaint procedure.

The complaint

  1. The complainant, who I refer to as Miss B, complains the Council has not properly responded to her complaint at stage two of its complaint’s procedure.

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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 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 the information Miss B provided and spoke to her representative, Mr Y, about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Miss B and the Council for their comments.

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What I found

Legislation and Guidance

  1. Disabled Facilities Grants (“DFG”) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to provide grant aid to disabled people for certain adaptations. Before approving a grant, a council must be satisfied the work is necessary and suitable to meet the disabled person’s needs and is also reasonable and practicable.
  2. The maximum amount of a mandatory DFG is £30,000. The amount payable may also be subject to means testing of the disabled person and their partner. Where the application is for a disabled child or qualifying young person there is no means test.
  3. Councils may also award discretionary help under the Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 (“the Order”). It is for councils to decide what help they give, and examples could include a grant, loan, or equity release. To use their discretionary powers, councils must have a clear policy setting out what use it intends to make of the power.
  4. Councils should give the applicant a decision on a grant application as soon as reasonably practicable. This must be within six months of the grant application. If a council refuses a grant it must explain why. Once the work is complete the council must pay the grant in full before 12 months from the date of the grant application.
  5. Section 17(1) of the Children Act 1989 imposes a duty on councils to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs.
  6. If it appears to the council that a parent carer has needs for support, or if the parent requests this, the authority must complete a parent carer needs assessment. The council may combine the child and parent carer assessments.
  7. Section 17(6) of the Children Act allows councils to provide means tested financial assistance to a child in need. It may place conditions on this help such as repayment.
  8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
  9. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
  10. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
  11. Regulations state that councils must not pay direct payments to a parent who lives with the child needing care, except if it considers it necessary.
  12. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

Background

  1. Miss B has a condition that affects the connective tissue in her body. It causes acute pain in her joints and can lead to dislocation of joints during exercise. This has a significant impact on Miss B’s day to day life as she reports being in constant pain and a range of other symptoms as a result. She has difficulty with mobility, is reliant on a wheelchair and has problems accessing her home and services. Miss B lives with her parents who provide care and support.
  2. Miss B first noticed severe symptoms of her condition in her early teens. A specialist diagnosed her condition in 2014. Miss B then had a range of health, education and social care assessments to identify her level of needs. Miss B’s parents also applied for a DFG to install a stairlift due to difficulties Miss B had accessing the first floor. The Council granted the DFG and the stairlift was installed in December 2014.
  3. Miss B’s condition continued to deteriorate and access to her home became more difficult. In January 2015, the Council completed an assessment of Miss B. The assessment document also includes a parents/carers assessment. It recommended a package including 28 hours support per month.
  4. The Council’s Stage 2 investigation report includes a timeline. In that timeline it says the Occupational Therapy (“OT”) service and Home Improvement Agency (“HIA”) visited Miss B’s home in January 2015 to assess home access issues. It says the family requested a delay in any adaptions until the outcome of an upcoming appointment with a pain management clinic.
  5. The Council uses the local NHS OT service to complete assessments. The OT service has provided a chronology of its visits. This shows its first visit was in July 2015. The OT service has not provided any notes or other documents completed at or following this visit. It says the Council’s HIA should have copies. The HIA has provided its written notes of the July 2015 visit. It includes brief notes about the home, which show it considered access to the property, ground floor living and changes to the downstairs bathroom. It does not include any mention of the OT service.
  6. In early February 2016, the HIA visited the home again. The notes say the officer discussed proposals that it had agreed at panel. This included a step lift from the front garden to a new access at the front of the lounge and bathroom adaptions. It is not clear when any panel considered this, and the Council has not provided a plan of these proposed adaptions. There is no record the Council discussed this plan with the family until February 2016.
  7. The family raised concerns about the proposals as it would make the lounge unusable. They instead suggested access through the garage. A meeting took place in mid-February 2016 with the OT service and HIA present. The family again raised concerns about the plans. The OT’s also raised concerns. The HIA then produced a draft plan dated March 2016, which included access through the garage.
  8. In May 2016, a panel considered and agreed the new plan. The OT service, HIA and appointed builders visited the home again in June 2016. The HIA suggested a platform lift from the garage to the house for access. It discussed this at the next children’s panel in July 2016, which agreed the changes.
  9. The Council also completed an updated assessment of Miss B’s social care needs in May 2016 and increased her package of care.
  10. The OT service asked the Council for an update in late September 2016. The Council had not yet received an estimate from the builders. While working on another matter the HIA chased the builder for the estimate.
  11. In early November 2016, the Council telephoned the builder to chase for an estimate. The builder provided an estimate, but the Council considered it was very basic and only included a one-year warranty for the platform lift. The Council asked for a five-year warranty and more detailed information. The Council also submitted applications for planning and building regulation approval.
  12. The Council received information in November 2016 that the plans involved building over a public sewer. This meant it needed to relocate a sewer and manhole, adding to the costs of the plan. In early December 2016, the builder provided an estimate of around £55,000 to £60,000.
  13. The Council conducted a site visit and discussed the plan with the parents. The family asked if the Council could install the platform lift now and complete the other works later. They asked if the Council could provide one grant for the platform lift and another for the other works. The family raised concerns about the length of time the process had taken and that they had no savings with which to pay any excess over the grant limit.
  14. The Council met with the family again in February 2017 and confirmed it could not consider the adaptions under two different grants. It discussed the possibility of a top up loan. The family did not want a loan as they did not have the means to repay this.
  15. The family attended a meeting with the Council in April 2017. The family was clear it did not want to accept any loans and asked the Council to fund the full works. The family again raised concerns about the length of time taken to resolve the matter. They also raised concerns about the platform lift not being large enough. The Council discussed this at the next children’s panel, who agreed the family’s preference for a step lift, but said any DFG would still only cover £30,000.
  16. In May 2017 the family applied for financial assistance under s17(6) of the Children Act. The Council rejected this request. It said the adaptions would cost £38,000. It said the Council had approved a DFG for £30,000 and the family had £11,000 in charitable donations towards the adaptions. The family said they needed to keep the charitable donations as they did not know the final figure for the works.
  17. In June 2017, the Council approved a DFG for £30,000. It confirmed a final figure for the overall works was £52,000. It said the family would need to cover the remaining £22,000 but that it would consider whether to provide discretionary assistance in the form of a loan if the family requested. The family did not wish to apply for a loan.
  18. The Council considered again whether it could provide financial assistance under the Children Act. It said that before it could consider this request it would need the family to agree to a financial assessment. The family felt that further financial assessment would be intrusive and did not agree to this.
  19. In July 2017 the Council completed an adult needs assessment for Miss B in view of her approaching the age of 18. It completed this as part of her transition from children to adult social services.
  20. In 2018 the family made a formal complaint about the way the Council had managed the adaptions and other social care support. The Council investigated the complaint under Stage 2 of the statutory children’s complaints procedure. It investigated the following heads of complaint and produced a report in 2019:
    • The Council has failed to provide the necessary home adaptions, which would allow Miss B safe exit and entry to her home
    • The Council has failed to undertake a comprehensive adult needs assessment incorporating a carer’s assessment, resulting in a lack of adequate care and support and the parents needing to support Miss B physically
    • Until mid-2017 the Council failed to make an appropriate Section 17 Child in Need response in leading the multi-agency assessment and coordination of service delivery to meet her assessed needs
    • The social care and OT professionals consistently failed to obtain Miss B’s wishes and feelings
    • There was an unacceptable delay and fault in the assessment for and provision of a DFG
    • Miss B’s parents have been subject to excessive financial means testing to determine their level of financial contribution to home adaptions, with no satisfactory outcome
    • From 3 April 2017, Miss B’s physiotherapy sessions ended with no explanation as to why and no alternatives offered
  21. The Council did not uphold any of the subjects of complaint.

Findings

Time

  1. We normally cannot investigate late complaints. In the following paragraphs I find fault in relation to several matters that took place more than 12 months before Miss B complained to the Ombudsman. However, this is because I am looking at whether the Council properly investigated those matters as part of its stage two complaint response. The stage two response is within time, and therefore so are the matters it addressed.

Complaint procedure

  1. If the Council has investigated a complaint under all three stages of the statutory children’s complaints procedure, we will not normally investigate further. However, where the complaint has only completed two stages, and it is agreed not to pass this to stage three, we may investigate whether there is any fault in how the Council investigated the matter at stage two.
  2. I have therefore investigated the Council’s stage two complaint response. I find fault in how it considered the issues at stage two. I have set out my findings in the following paragraphs under the heads of complaint included in the stage two report.

Complaint 1 – Adaptions and access

  1. Complaint elements one and five are similar in that they both relate to the issue of adaptions. In both, Miss B’s main concern is that no adaptations have been completed. However, there is a clear difference in the complaint headings. Complaint heading one is about the overall failure to provide adaptions. The reason this has not happened is because of issues around funding. Complaint heading five is about the delay in assessments and agreeing a plan for the adaptions, on which the family could apply for a DFG.
  2. It is therefore slightly confusing that the investigator has focused on the delays under complaint one and focused on the overall position around funding under complaint five. For that reason, in this section I will consider how the Council investigated whether there were any delays on its part in assessing and finalising a plan for the adaptions.
  3. The stage two report finds there was some delay. It says there was an initial delay due to Miss B undergoing health assessments between January and July 2015. It says a further delay then took place between July 2015 and February 2016 because of sickness absence of OT staff. It says the OT service is part of the NHS. It says the parents agreed a plan in May 2016 and that delays from that point on were due to disagreed and frequent revisions of the plan, and changes in Miss B’s needs.
  4. I find fault with this response. There is no evidence the HIA or OT service visited to consider adaptions in January 2015, as it says in the report’s timeline. The first visit was in July 2015. From this point on it is clear there was at least a six-month delay on the Council’s part.
  5. I recognise the OT service is part of the NHS. However, the Council engaged the OT service to complete an assessment as part of its ongoing assessment of Miss B’s needs under the Children’s Act. Also, to contribute to any decision about adaptions funded by way of a DFG. The OT service is therefore no different to any other third party the Council may contract in completing its statutory functions. The Council is responsible for overseeing any third parties acting on its behalf and is ultimately responsible for any fault in their actions.
  6. The stage two report identified that there was a six month delay due to the OT service but did not acknowledge that responsibility for this lay with the Council.
  7. I also find fault in the Council’s explanation of delays from that point on. It is clear there was a further delay between June and November 2016 while waiting for the builder to provide an estimate. The Council did not chase this up for more than two months. It then chased the builder in passing while dealing with another complaint. It then did not chase for at least another six weeks. While waiting for the estimate the Council could not progress the application any further.
  8. There is no indication the family raised concerns about the plan during this period or that Miss B’s needs changed in way that delayed completing the adaptions. The delay was purely due to not receiving an estimate. It is therefore my view the Council is also at fault for ongoing delays until November 2016.
  9. From November 2016 onwards the position changed as additional works were needed and the cost was over the DFG limit. From then on, the Council was engaged in talks with the family and did revise the plan for the lift. I can not see evidence of any further delays that suggest fault on the Council’s part. It is clear the issue then reached an impasse over funding. I have dealt with the funding issue under complaint five.
  10. I also have concerns around record keeping. It is clear the stage two investigator had difficulty speaking to and obtaining records from the OT service. The OT service has not provided any clear records of its visits to the family home. There is no evidence of any assessments it completed or its rationale. The only real record any input it had comes from comments in the HIA case notes.
  11. There should be a clear record of the OT’s visits, assessments, decisions and any other input it had. It is fault that neither the OT service nor the Council can provide this. I have been able to reach a decision without that documentation, but it is a basic tenet of practice for any social care or health organisation to keep clear and accurate records. I therefore find fault in that respect.

Complaint 2 – Adult needs and carer’s assessments

  1. The complaint heading suggests Miss B is complaining the Council’s adult social care assessment is not comprehensive. Also, that it has not completed a carer’s assessment since she transitioned to adult care. However, I note that in Miss B’s complaint to us she says the Council has not complied with its duty under the Children’s Act, as set out at Paragraphs 11 and 12.
  2. The stage two investigation report addresses whether the Council has completed a carer’s assessment and taken the parents’ views into account in all three assessments from 2014 to 2017. It does not uphold the complaint. It says the assessment completed in January 2015 has a clear section for the carer’s assessment. The 2016 review increased her care package and the 2017 adult assessment recorded the parents’ views in detail.
  3. The stage two report does not address whether there are any concerns about the assessment of Miss B. However, I do not find fault in this respect. In Miss B’s complaint to the Ombudsman she does not raise this as a concern. Also, I have reviewed the adult care assessment completed in 2017. The assessment is comprehensive, addresses each of Miss B’s needs and identifies that she has eligible needs for support. Miss B’s views and the views of her parents are recorded throughout. There is therefore no evidence of fault in this assessment.
  4. I have reviewed the Children’s Act assessment dated 2015 and can see a clear section entitled ‘carers assessment’ with a detailed consideration of the parents’ views and circumstances. I therefore do not find fault in that respect.
  5. I find fault in how the stage two report considered whether the Council had completed a carer’s assessment following Miss B’s transition to adult social care. I can see there is a detailed consideration of the parents’ views and their own health issues. However, the assessment does not comment on whether either parent has eligible needs for support or, if so, consider what, if any, support it might provide. It therefore does not meet the criteria of a carer’s assessment in line with the Care Act. The Council has not completed any other carer’s assessment since.
  6. Miss B’s parents raised a number concerns about their own health and circumstances and how that impacted on their caring roles. Therefore, it is my view it was fault not to complete a full carer’s assessment.

Complaint 3 – Section 17 Child in Need response

  1. The stage two report did not uphold this complaint. It found the Council had complied with its duties under the Children’s Act to assess Miss B and provide a package of support. It said other professionals had been involved in Miss B’s support as part of the multidisciplinary team and at various times took the lead. However, without the Council’s assessment, no support package would have been in place for Miss B.
  2. I do not find fault in how the Council investigated this matter. The Council’s primary responsibility was to assess Miss B, establish whether she was a child in need, and if so, put in place a support package. It completed its assessment in January 2015, produced a package of support and increased this at a review in 2016. The assessments were robust, included a carer’s assessment, and recommended comprehensive support plans.
  3. Miss B says the report did not properly investigate whether the Council coordinated and delivered its service. She gives the example of direct payments. The Council did not agree to pay direct payments to Miss B’s mother as her main carer, despite staff from school suggesting this. Miss B says the report contradicts itself about who suggested this and does not explore the matter properly.
  4. I accept the report’s findings do not go into much detail on this point. The report’s focus is that social workers understood the law in this area more than school staff. It does not outline the law or how the social worker applied it. However, as outlined at Paragraph 16, the Council cannot normally pay direct payments to a parent living with the child. I can see under Complaint 2 that the social worker sets out a clear rationale for why she did not consider direct payments to Miss B’s mother appropriate. Therefore, even if the stage two investigator addressed this point in more detail, it is unlikely to have changed his decision.
  5. I can see the stage two report accepts there was some conflict between the respective agencies. However, this does not necessarily mean there was fault on the Council’s part. The Council has clear records of completing assessments, implementing a care plan and attending team around the family meetings.
  6. Miss B has provided further information about occasions on which she says the Council’s practice fell short. However, I note the documents provided mostly date from mid-2017 onwards. The agreed complaint heading says the Council did not properly deliver its service until mid-2017. Therefore, I do not find fault in the stage two report not considering these issues.
  7. Any issues around the Council not providing adaptions are covered in the other heads of complaint.

Complaint 4 – Failed to obtain Miss B’s wishes and feelings

  1. I do not find fault in how the Council investigated this point. The stage two report sets out comprehensively how professionals involved took into account the views of Miss B and her parents. I have reviewed the documents provided and can see the social care assessments and minutes of meetings clearly record Miss B’s views. The HIA also recorded the parents’ views and changed the adaption plan on more than one occasion as a result.
  2. There were some delays and issues with record keeping. However, these are dealt with under other heads of complaint.

Complaint 5 – Delay in the assessment for and provision of a DFG

  1. As outlined at Paragraph 43, the way the stage two report dealt with this matter is slightly confusing. The report does not address issues of delay here, and instead focuses on the overall position regarding funding. I have therefore considered the wider funding issues in this section.
  2. The Order is clear that councils can decide what discretionary assistance they provide, and this can take the form of grant, loan or otherwise. It is for the Council to decide but it must publish and follow its own policy. The Council has provided its policy, which clearly sets out the additional support it can provide. It sets out various types of means tested loan. This is compliant with the legislation and therefore I cannot find fault.
  3. The family asked the Council to split the cost over two DFG’s. This is not something the Council can do. I understand it previously provided a DFG for a stairlift. However, that was based on an assessment of Miss B’s needs at the time. The Council is entitled to consider a new DFG if the person’s needs have changed. However, it cannot split the cost over two DFG’s based on her current needs, otherwise the £30,000 limit would be meaningless.
  4. Miss B suggests that, had the Council been quicker to assess her for adaptions, it could have provided several different grants to address each of her needs as they emerged. This is not a finding I can make. I cannot say what adaptions the Council would have approved in, say January 2015, or that this would certainly have been under the DFG limit. It is impossible to say whether the Council would have approved multiple DFG’s in different circumstances. The Council can approve a further DFG if the person’s needs change. However, this is not something I would expect the Council to have in mind when making each decision. It is not normal practice, or in keeping with the aim of the legislation, to provide several grants on a piecemeal basis.
  5. The Council also considered Miss B’s request for assistance under s17(6) of the Children Act. I do not find fault in how the Council considered this request. Initially the Council’s turned down the application was because the family had enough money to cover the excess £8k. However, once the final estimate had changed it agreed to consider the request again. I cannot find fault in the Council requiring the family to agree to a financial assessment first, as this is a form of discretionary means tested assistance.

Complaint 6 – Excessive means testing

  1. The stage two report goes into a lot of detail about the circumstances surrounding the application for a DFG and the impasse between the Council and the family. Miss B raises several concerns about comments the investigator has made, his interpretation of events and the timeline.
  2. I have not addressed each of these conflicts in detail in this statement. The root of this complaint is the impasse over funding. There are two ways the Council could consider discretionary extra funding. One is under the Order and the other is under s17(6).
  3. There is no fault in the Council completing a comprehensive financial assessment under either of these pieces of legislation. Both are examples of means tested discretionary assistance. In both cases the Council is also entitled to decide what type of assistance it provides, including by way of a loan.
  4. The Council has informed Miss B she can apply for a loan in line with its housing assistance policy, which sets out various types of loan. I can see no fault in this policy as it is in line with the Council’s powers under the Order.
  5. I have also reviewed the loan application form, which says it does not put the family under any obligation. I therefore cannot find fault in the Council asking the family to sign this before it completed the financial assessment.

Complaint 7 – Physiotherapy

  1. Miss B indicates that she accepts the findings of the stage two report on this point. I have therefore not investigated this matter further.

Consideration of Remedy

  1. I have found fault in the following areas:
    • There were delays in the OT service assessing Miss B, and in the Council chasing for a final estimate of the works. This led to delays in agreeing an adaption plan and applying for a DFG.
    • The Council has not been able to provide clear and accurate records of the OT service’s assessments.
    • The Council did not complete a carer’s assessment for Miss B’s parents following her transition to adult social services.
  2. I recommend the Council apologise for the fault identified.
  3. As already outlined, I cannot make a finding on whether Miss B could have applied for multiple DFG’s but for the delay. However, the delays caused Miss B distress in terms of uncertainty about how her application was being dealt with at the time.
  4. I also cannot say what difference it would have made, if any, to the level of support Miss B’s parents received if the Council had conducted a full carer’s assessment. However, again, this causes distress in terms of uncertainty about what additional support it might have provided but for the fault.
  5. I recommend the Council pay Miss B £150 to acknowledge this distress.
  6. I recommend the Council share this decision with the NHS OT service it contracts. The Council should provide evidence it has reminded the OT service of the need to keep full and accurate records of all assessments completed on its behalf. The Council should consider whether there are any changes it can make to its arrangements with the OT service, to ensure it has access to all records of work completed on the Council’s behalf.

Agreed action

  1. The Council has agreed to, within a month of this decision:
    • Apologise to Miss B for the fault identified at Paragraph 82.
    • Pay Miss B £150 to recognise the avoidable distress caused.
  2. It has also agreed to, within three months of this decision:
    • Provide evidence it has shared this decision with the OT service it contracts. The Council should remind the OT service of the need to keep full and accurate records of all assessments completed on its behalf. It should also consider whether there are any changes it can make to its arrangements with the OT service, to ensure it has access to all records of work completed on the Council’s behalf.

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Final decision

  1. The Council is at fault in how it investigated this matter at stage two of its complaint’s procedure.

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Investigator's decision on behalf of the Ombudsman

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