Decision : Not upheld
Decision date : 31 Mar 2020
The Ombudsman's final decision:
Summary: the Council was not at fault when it decided not to pay a Disabled Facilities Grant because builders had completed the eligible works before Mrs X returned the grant application form.
- Mrs X made this complaint on behalf of her adult son, Mr Y. Mr Y does not have capacity to make the complaint himself. We are satisfied Mrs X is a suitable person to represent him.
- Mrs X complains that the Council refused to pay a Disabled Facilities Grant of £12,102 to fund home adaptations to meet Mr Y’s needs because the building works started before the grant application was approved.
- Mr Y receives disability benefits. Mrs X says he cannot afford to pay the builders without the grant. As Mr Y’s parent and carer, the Council’s decision not to pay the grant has caused her significant stress and worry. It has also had a serious impact on her health.
The Ombudsman’s role and powers
- 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)
- We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
- 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)
How I considered this complaint
- I have spoken to Mrs X and considered all the evidence she sent me.
- I considered the Council’s response to my enquiries and evidence from the Housing Improvement Team’s records. This includes correspondence between officers and Mrs X and information it sent her about the grant process.
- I also considered the Council’s responses to Mrs X’s complaint.
- I sent Mrs X and the Council my draft decision statement and I have considered Mrs X’s comments.
What I found
- Mrs X is a homeowner. Her adult son, Mr Y, lives at home with her. He is a young adult who has a diagnosis of autism, epilepsy and moderate learning disabilities.
- Mrs X first contacted the Council to enquire about a Disabled Facilities Grant for Mr Y in 2016. This investigation is not examining the Council’s handling of the grant enquiry since 2016 and the time taken to carry out an Occupational Therapy assessment, property survey and reach agreement on the scheme. This was not part of Mrs X’s complaint.
- Mrs X complains about the Council’s decision in July 2019 not to pay the grant because the building work had started. I refer to earlier events in this statement only where they are relevant to this complaint.
The relevant law
- Disabled Facilities Grants (DFGs) are provided under the Housing Grants, Construction and Regeneration Act 1996 (“the 1996 Act”). Councils have a statutory duty to provide grant aid to disabled people to carry out necessary adaptations to their home. The grant is means-tested and based on a financial assessment of the disabled person’s income.
- Before it approves a grant, a council must be satisfied the work is necessary and suitable to meet the disabled person’s needs and that it is also reasonable and practicable. This usually involves an Occupational Therapist assessing the disabled person’s needs, and a survey of the property to make sure the works are feasible.
- Section 29 of the 1996 Act imposes some restrictions on paying grants when works have already started. In general, a council must not approve an application for a grant if the relevant works started before the DFG application was approved.
- If the works have started, but have not yet been completed, the council may approve the application if it is satisfied there were good reasons for starting the works before the application was approved.
- However, section 29 states that a council shall not approve a grant application if the relevant works have already been completed. In these circumstances, there is no discretion to pay a DFG.
Differences between the mandatory scheme and the preferred scheme
- The mandatory scheme covers the “eligible works” which the Occupational Therapist has decided are necessary to meet the disabled person’s needs. In most cases the Council’s Home Improvement Team will manage the application process and delivery of the adaptations using approved contractors from its list. But applicants may “self-manage” if they wish to do so.
- Some applicants may choose to include the eligible works in a more extensive programme of building works in the property. This is called a preferred scheme. It either expands on the Council’s mandatory eligible works, or includes them in a larger building project.
- If the applicant opts for a preferred scheme, the Council does not manage the application process and delivery of the adaptations. The applicant is responsible for completing every stage in the DFG application process. This involves getting plans for the scheme drawn up, applying for building regulations approval, getting quotations from builders and providing supporting documents and evidence. It also means the applicant is responsible for completing the DFG application and providing all the required documents. Under the preferred scheme, the applicant chooses the building contractor and supervises the work.
The key facts
- Mrs X made enquiries on Mr Y’s behalf about a grant to carry out adaptations to the property to meet his needs as a disabled person.
- An Occupational Therapist visited in September 2016 to assess Mr Y’s needs. She recommended the following works:
- Ground floor access to a level access shower;
- Ground floor access to a downstairs toilet.
The Council says the Occupational Therapist gave Mrs X a leaflet which explains the DFG application process. It explains the different stages and includes a checklist of 30 steps from the Occupational Therapy assessment to grant approval and completion of works. Steps 21 to 25 in the checklist are:
- Grant application submitted;
- Grant approved;
- Grant approval letter sent;
- Pre-start meeting with HIT, contractor and applicant to arrange works;
- Commence works.
Mrs X says she was not given this leaflet.
- It took time for Mrs X and the Council to agree on a suitable scheme which would meet Mr Y’s assessed needs and Mrs X’s preferences. Once agreement had been reached, the Council had to assess the cost of the mandatory eligible works. The Council could only pay a DFG for works required to meet Mr Y’s needs, and not the other building works. The case was presented to funding panel for approval.
- In early October 2018 Mrs X informed the Home Improvement team she had found a builder and was keen for works to start soon.
- On 22 October 2018 an officer in the Home Improvement team, Officer A, sent Mrs X an email indicating that the Council would provide funding of £12,102 for the eligible works for Mr Y. This was not a formal grant approval notice. She asked Mrs X whether she wished to proceed under the preferred scheme or ask the Home Improvement team to deliver the works in the mandatory scheme.
- Officer A attached an information leaflet to the email which explained the applicant’s responsibilities under the preferred scheme and all the stages in the process. She advised Mrs X to read it carefully. She also said:
“Please note if you commence the works before the grant has been approved, we are unable to pay any retrospective works”
- On 4 November 2018 Mrs X confirmed she wished to proceed with the preferred scheme. She wanted to include the works to create a ground floor bathroom for Mr Y in a larger programme of building works, including a kitchen extension, which she and her husband would pay for. The same building contractor would do all the works.
- On 5 November 2018 the officer in the Home Improvement team replied to Mrs X’s email. She said:
- “Once any planning and building regulations have been submitted and approved, you will need to forward to us the planning application number and building control reference number, prior to the grant being approved.”
“Please note that any works completed prior to the grant funding being approved will not be eligible for Disabled Facilities Grant funding and will be excluded from the value of the grant approval.”
- Mrs X appointed an architectural technician to prepare plans and she instructed a structural surveyor.
- In mid- March 2019 the architect submitted plans for Building Regulations approval. The plans were passed and the Building Control team issued an approval notice on 26 March. The Notice says the plans complied with Building Regulations. It clearly says it is not an approval under planning legislation or for any other statutory purpose.
- The Council says neither the Home Improvement team nor the Occupational Therapist knew about the Building Regulations approval at the time because Mrs X was managing the process. Mrs X understands that the Building Control service did inform an officer in the Home Improvement team.
- Mrs X says she understood the Building Regulations approval notice gave permission for the building contractor to start work. She did not know she needed any other approval notice.
- On 2 April 2019 the Home Improvement team reviewed open cases and wrote to Mrs X. It sent her a preferred scheme information pack. A paragraph in the letter said:
“It is important to remember that any works completed prior to the grant funding being approved will not be eligible for Disabled Facilities Grant funding. Please do not start any works until you have received written confirmation of your grant award”.
- A leaflet in the pack reiterated this point. It said it was highly unlikely the Council could approve a grant where building works had started before the grant was approved. It said the law did not allow DFG funding to be awarded retrospectively.
- On 22 May Mrs X informed the Home Improvement team that Building Control had approved the plans for Mr Y’s bathroom. She said:
“Can we have approval from your team please in order for us to claim the awarded grant funding to complete this work?”
- On 28 May the Home Improvement team replied. She said she could not approve the grant until Mrs X returned the DFG application form and other forms included in the pack sent on 2 April. She advised Mrs X not to start building works until the grant was approved because the law did not allow the Council to retrospectively fund grant works.
- On 7 June 2019 Mrs X completed and signed a form confirming she wished to proceed with the preferred scheme. By signing the form, she declared that she had read and understood all the information and understood her responsibilities to oversee and manage the work.
- Mrs X told me the builders started work on the kitchen extension in mid- May 2019 and finished by mid-June 2019. They then started work on Mr Y’s bathroom at the end of June. These works were completed by mid-July 2019.
- On 14 July 2019 Mrs X sent the completed DFG application form to the Council. She also provided a copy of the Building Regulations Notice and approved plans. She asked how long it would take to get grant approval.
- Following contact between Mrs X and officers, the Home Improvement team realised that works on Mr Y’s bathroom had started prior to grant approval. Officers asked Mrs X to stop the works so officers could make a site visit to review what had been done so far and decide if it was possible to pay a grant for any outstanding works.
- Two officers visited on 30 July 2019. They found the works to Mr Y’s bathroom had been completed. According to their notes, Mrs X told them she was busy and did not have time to read all the information the Council sent her about the grant process. Mrs X says she did not make this comment.
- The Council told Mrs X it could not pay the DFG because the works had been completed before a grant approval notice was issued.
- Mrs X complained to the Council. At the second stage of the complaints procedure, the Council asked an independent consultant to investigate the complaint and review the Home Improvement team and Occupational Therapy team case records and correspondence. The Council concluded that Mrs X appeared to have mistaken the Building Regulation approval notice for a DFG approval notice. It did not uphold Mrs X’s complaint because it only received the grant application form after the works were completed.
- In response to my enquiries, the Council raised concerns that the facilities in the wet room did not meet the required specification for a person who has epileptic seizures. It also said it cannot offer funding from any other source.
- Mrs X told me that the builders had finished work on Mr Y’s bathroom in mid-July 2019. The Council’s evidence shows she did not submit the completed DFG application form until 14 July. It was then too late for the Council to issue a grant approval notice because all the eligible building works had been completed.
- Mrs X told me she found the Disabled Facilities Grant application process confusing and difficult to understand. She had completed all the paperwork herself. She does not consider the need to obtain a grant approval notice before starting the building works was clearly explained in the information she received.
- Mr Y has lost the opportunity to get a DFG of just over £12,000. Mrs X says her son has been paying the building contractors in instalments from his disability benefits. This leaves him short of money to meet his needs. Mrs X says she and her son have both been seriously affected by the worry and stress.
- I share Mrs X’s view that the DFG process is complicated. There are many stages which must be followed in the correct sequence. This includes submitting forms and documents at key stages. However, Mrs X chose to use the preferred scheme and so she was responsible for managing the process.
- Section 29 of the 1996 Act says a council must not approve a DFG if the works have already been completed. Councils have some discretion if the eligible grant works have started but have not yet been completed. The Council must act in accordance with the law when it processes DFG applications.
- The evidence shows Mrs X did not return the completed DFG application form to the Council until 14 July 2019. The Council had first sent her the form in April and sent it again in May before the builders started work on Mr Y’s wet room. By the time Mrs X returned the form, the builders had completed work on the wet room. Two officers from the Home Improvement team made a site visit on 30 July and took photographs of the completed works. In these circumstances, the law does not allow the Council to pay a DFG.
- It seems Mrs X mistakenly believed the Building Regulation approval notice issued on 26 March 2019 was also a DFG approval notice. On that basis, she instructed the builders to start work. But the notice clearly states it is only an approval for building regulations and not for any other purpose.
- I have considered whether the information the Council gave Mrs X was misleading in any way or failed to properly explain the requirement to get a grant approval notice before starting building works. The records I have seen show the Home Improvement team drew Mrs X’s attention to this requirement in a series of emails and by sending information to her before the builders started work. I do not find the Council failed to provide Mrs X with adequate information.
- Mrs X works and cares for her son who has substantial disabilities. She is very busy and may not have read and fully understood all the information the Council sent explaining the requirements of the scheme. But I cannot find fault with the Council when the evidence shows it sent the required information.
- Mr Y has missed out on a large grant to meet his needs. But we can only recommend a remedy where someone has suffered injustice due to fault by a council. In this case, the Council was not at fault. Mrs X did not submit the grant application and get a grant approval notice before the builders completed works on Mr Y’s wet room. The Council had advised Mrs X in writing not to start building works before the grant approval notice was issued.
- Understandably Mrs X is very upset that the Council decided not to pay the DFG. There is no question that her son has needs due to his disabilities which met the criteria for a DFG. Mrs X is now worried about how they will pay the builders without this grant. She says the stress and worry has taken a toll on her health and affected her son. Although I accept Mrs X is in a very difficult position, I do not consider this happened because of fault by the Council.
- I have completed the investigation and found the Council was not at fault.
Investigator's decision on behalf of the Ombudsman