Summary: The Ombudsman should not investigate this complaint about whether Mrs X should have paid for a walk-in shower. This is because there is not enough evidence that any alleged fault by the Council caused the claimed injustice.

The complaint

1. Miss Y complains on behalf of her mother, Mrs X, that the Council did not deal properly with her contacts about the bathroom in her family’s new home. She argues this resulted in her family paying for works to the bathroom rather than Mrs X receiving a disabled facilities grant for those works.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the alleged 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)

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How I considered this complaint

4. I considered the information Miss Y provided. I also considered copies of the Council’s responses to Miss Y’s complaint, which the Council sent us. I took account of the relevant law. I shared my draft decision with Miss Y and considered her comments on it.

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What I found

5. This complaint is against Surrey County Council (‘the Council’). A disabled facilities grant (DFG) can pay for works to a home to meet a resident’s disability-related needs. The relevant district council, not Surrey County Council, manages the DFG application process and decides whether to award a grant. When deciding this, the district council takes account of a County Council occupational therapist’s (OT’s) assessment of what disability-related adaptations someone needs. The district council might not approve a grant if works have started and cannot approve a grant if the works have already been completed (Housing Grants, Construction and Regeneration Act 1996, section 29).
6. Mrs X has physical disabilities. A housing association offered her a property. Miss Y said as the property had a bath rather than a walk-in shower, it did not meet Mrs X’s disability-related needs. The family moved in and replaced the bath with a walk-in shower at cost of around £4,000. The Council sent an OT to assess Mrs X after the bath had been removed. The district council did not consider a DFG application because works had started.
7. The complaint against Surrey County Council is that, had the Council handled earlier contacts from Miss Y differently, and had it sent an OT to assess Mrs X sooner, the family would have understood the DFG process including the need for an OT assessment and matters would have progressed before the family arranged the works themselves, so they could have received a DFG for the works rather than paying themselves. Miss Y wants the family’s costs repaid.
8. Miss Y’s complaint also expresses dissatisfaction with her district council, which is a separate local authority from Surrey County Council. We have already decided a complaint about the district council’s involvement. A copy of that decision is here. While I appreciate Miss Y disagrees with that decision, we do not have grounds to revisit that decision.
9. Miss Y is also dissatisfied with the housing association. The Local Government and Social Care Ombudsman has no power to investigate a housing association’s actions in their own right. If a housing association acted on behalf of a council to carry out a statutory function of the council’s, we could consider the housing association’s actions as part of a complaint against the council. That would not be a complaint against the housing association as such. In this case, the housing association did not act on behalf of Surrey County Council in carrying out the latter’s statutory functions. For these reasons I cannot consider the housing association’s actions. We have told Miss Y the Housing Ombudsman Service, a separate organisation from us, might be able to consider a complaint about the housing association.
10. So this draft decision statement only considers the complaint against Surrey County Council.
11. The key point here is the Council says the OT who visited Mrs X believed that, if the bath had still been there, he would have been unlikely to recommend Mrs X needed a walk-in shower because evidence the OT saw of Mrs X’s abilities suggested she was likely to have been able to use the bath with the provision of some equipment.
12. So, while the Council did not assess Mrs X for bath use (as there was no bath when the OT visited), the Council’s judgement here extrapolates from what the OT saw of Mrs X’s abilities when assessing other points. I do not have any evidence to suggest the Council wrongly reached that judgement. So, as paragraph 3 explained, I do not propose to criticise that judgement.
13. Responding to a draft of t decision, Miss Y argued this point is speculative, based on what the Council thinks it would have decided about a point it did not actually assess. I acknowledge the situation is not the same as if the OT had assessed Mrs X’s bath use and decided she could use the bath with help. Nevertheless, I can reach a view here on the balance of probabilities.
14. The OT’s contemporaneous notes and subsequent correspondence with Miss Y gave reasons, based on judgements about Mrs X’s mobility and needs on the points the OT did assess, for concluding he would probably have decided Mrs X could use the bath (with some equipment to assist) if he had assessed that point. I consider I can rely on that evidence as showing the OT would have been unlikely, on balance, to say Mrs X needed a walk-in shower had he assessed her using the bath.
15. Miss Y states the Council should offer to assess Mrs X using a bath elsewhere. I am not persuaded this is necessary. First, as explained above, I see no fault, on balance, in the Council’s decision-making. So there are no grounds to recommend such an assessment. Second, assessing Mrs X’s ability to use a different bath at a different time would not necessarily give a clear enough understanding of what such an assessment would have concluded about the bath that was in the property in February – March 2019.
16. Therefore, even if there had been a DFG application, it is unlikely, on balance, the Council would have told the district council that Mrs X needed a walk-in shower. It follows that it is unlikely the district council would have agreed a DFG for a walk-in shower. In that context, the questions of whether the Council properly dealt with early contacts from the family (including whether or when it properly explained the need for an OT assessment) and sent an OT quickly enough are not significant enough to investigate. This is because, even without any alleged fault on those points, the likely result would still have been no recommendation for a grant to provide a walk-in shower.
17. It is also relevant that processing a DFG application can take up to six months. As the family began installing the shower within a few weeks of taking the property, it also seems unlikely they would have waited up to six months, even had the Council recommended a shower (which is unlikely) and had there been a DFG application to the district council.
18. Responding to a draft of this decision, Miss Y said Mrs X is prone to infections so could not have moved in without having shower. Miss Y stated that, had the family known the DFG process could take up to six months, they would have requested the OT assessment then paid for the work themselves. If they had received a DFG, they would have used it to clear the debt from the works.
19. I note Miss Y’s argument. However, this presupposes the OT assessment would have said Mrs X needed a shower. That would have been the only circumstance in which Mrs X might have got a DFG. As I have explained above, I do not consider that was likely. Also, had works started before a DGF was approved, the Council would not necessarily have approved a grant for the works. So Miss Y’s argument here does not change my view.
20. For these reasons I do not propose to pursue the complaint.

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Final decision

21. The Ombudsman should not investigate this complaint. This is because it is unlikely the Council would have recommended Mrs X should have a walk-in shower so it is unlikely Mrs X would have received a DFG for that purpose.

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Investigator's decision on behalf of the Ombudsman