Decision : Upheld
Decision date : 08 Dec 2020
The Ombudsman's final decision:
Summary: Miss X, who complains on behalf of her brother and his partner, Mr Y and Ms Z, says the Council was at fault in its handling of works to their bathroom undertaken as part of a Disabled Facility Grant. We found evidence of delay by the Council which has caused an injustice to Mr Y and Ms Z. For this reason, we recommended the Council apologises to them, pays them £350 in recognition of the impact of the delays on them and seeks to resolve outstanding works at their home within the next three months. The Council agreed.
- Miss X (who is complaining on behalf of her brother, Mr Y and his partner, Ms Z) says the Council took too long to arrange and complete works carried out to Mr Y’s bathroom. The works were funded by a Disabled Facility Grant (DFG). She also says there are outstanding problems with the works which the Council has not resolved. These matters have had a negative impact on the physical and mental health of Mr Y and Ms Z. Miss X has also raised concerns about the conduct of the Council’s officers and its handling of complaints about this matter.
What I have investigated
- I have investigated Miss X’s concerns about the handling of Mr Y’s DFG from the time the Council became involved. I have not considered matters handled by the local county council prior to the Council’s involvement. The latter parts of my statement explain my reasons for this.
The Ombudsman’s role and powers
- The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the Council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
- 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)
- 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
- As part of my investigation I discussed the complaint with Miss X and considered information she provided. I made enquiries of the Council and considered its response. I set out my initial thoughts on the complaint in a draft decision statement and I considered Miss X’s and the Council’s comments in response.
What I found
Epsom and Ewell Borough Council Housing Assistance Policy
- This policy explains how the Council will award and administer grants for assistance to disabled and vulnerable residents in need of help in upgrading or adapting their homes.
- Mr Y has been diagnosed with a range of complex physical and mental health issues. He lives in his own home with his partner, Ms Z, who has been diagnosed with chronic fatigue syndrome, diabetes and mental health issues.
- I understand the bathroom at Mr Y’s home was in a state of disrepair with the bath being propped up using bricks and wood. For this reason Miss X bought them a new bathroom suite in January 2018.
- I understand the new bathroom suite was mentioned to Mr Y’s GP who suggested that he and Ms Z could get help from the county council to install a new bathroom suitable for their needs. The GP made a referral to the county council’s Occupational Therapy (OT) department.
- An OT carried out an assessment and found Mr Y’s bathing facilities were unsuitable for his needs especially as he found it difficult to get in and out of the bath. He required assistance from Ms Z and had fallen several times. He had to attend hospital as a result on two occasions. The OT also recognised being unable to bath easily was affecting Mr Y’s mental health and that Ms Z helping him transfer from the bath was posing a risk to her.
- The OT recommended a level access shower with a seat and new hand wash basin be installed. Mr Y signed the OT’s report on 26 October 2018.
- The Council received the OT report from the county council on 12 November 2018. It had not previously been involved in this matter.
- On 23 January Miss X contacted the Council for an update. The Council replied to Miss X two days later and arranged for a Grant Officer and an OT officer to visit Mr Y.
- The visit took place on 7 February. It was agreed that consideration would be given to incorporating the suite purchased by Miss X into the bathroom design. However, the toilet was too high and would need to be replaced.
- An alternative toilet was sourced by Miss X on 13 February.
- On 20 February concerns were raised about the suitability of the shower cubicle purchased by Miss X as it would be difficult to fit a shower chair into it.
- Discussions continued about some of the details of the proposed work such as the shower seat. On 14 March Mr Y agreed to proceed with a wet room and not have a shower cubicle. A decision on the shower seat would be deferred.
- Mr Y returned signed paperwork agreeing to the DFG on 22 March.
- I understand in April Mr Y had a recurrence of an injury he sustained in 2018.
- Discussions about the details continued between April and June but were hampered by staff absence and poor communication between officers.
- On 12 June the Council advised Miss X a new officer would be dealing with matters as the previous officer was on long term sick leave. The new officer explained they were working to incorporate Mr Y and Ms Z’s preferences but the design had to meet their identified needs. The Council sent two proposed specifications, A and B, to Mr Y and the OT.
- The OT said specification B was the best compromise between Mr Y’s wishes and the needs identified by the OT. It was left to Mr Y if he wished to proceed.
- On 30 June Miss X emailed the Council asking for an update on the case. She copied the email to the ‘Contact Us’ address for making complaints on the Council’s website.
- However, Miss X received an automated response advising the officer was on leave until 5 July and matters should be referred to its contact centre, which she did. Miss X received a reply from the contact centre advising the matter had been forwarded to the appropriate officer who was on leave until 5 July.
- Miss X responded saying she wished the matter to be treated as a complaint. She received an acknowledgement the complaint had been registered and she would be contacted in due course. Miss X also received a reply that day from the officer who had been on leave. This explained the officer had not yet received agreement from Mr Y and Ms Z to proceed with specification B. This was because matters had not been progressed in her absence.
- Mr Y sought clarification from the Council’s surveyor regarding lighting, wall panels, flooring, heating and the wash hand basin before he agreed to specification B. The specification was agreed on 12 July. It included full height shower doors to the shower area as required to meet the OT specification.
- The specification was sent out to tender on 30 July. The tender process concluded and a contractor was appointed on 30 August. The contractor said he could start work on 2 September but Mr Y and Ms Z felt this was too soon. Accordingly works were scheduled for the next mutually convenient date of 23 September.
- The works commenced as planned and were completed on 7 October. Mr Y raised concerns regarding leaks from the shower area which it was suggested might be a problem with the shower walls. The contractor and supplier were investigating.
- The works were signed off and the contractor paid on 16 October.
- On 21 October Mr Y reported water seepage from under the shower screen and damage to the wash hand basin cupboard. This was referred to the contractor.
- On 25 October Ms Z fell on the shower handle while washing. She was not using the shower seat because she feared this increased water seepage.
- In response the OT offered to visit that day but this was declined as Mr Y and Ms Z preferred to wait for the contractor. It was clarified they could continue to use the shower seat.
- The contractor visited between 28 October and 22 November to adjust the shower screen (to see if this would prevent water seepage) and to replace the wash hand basin cupboard. The contractor offered to fit the cupboard on the wall to prevent any further damage. Mr Y declined this because he was concerned it would be unsafe.
- Painting to the bathroom ceiling was also required but was to be arranged for a date convenient for Mr Y and Ms Z.
- However, on 24 and 25 November Mr Y reported water seepage again. He also reported floor discolouration, requested another replacement cupboard and asked for the ceiling to be painted. He also said Ms Z could not use the shower door since it was adjusted.
- The Council replied on 25 November saying the doors fitted are for splash back only and are not designed to keep all water from escaping as would be in the case with a shower cubicle and that the type of shower head used was likely contributing to the problem. It said the only option to prevent water seepage would be to replace the doors with a weighted shower curtain. The response explained the Council wanted to help and would be happy to discuss matters on the phone.
- Miss X refutes the Council’s view and says the manufacturer of the doors told her that any shower can be used if the doors are fitted properly. The manufacturer also said the doors provide a water barrier rather than a waterproof enclosure.
- Mr Y and Miss X sent further correspondence to the Council raising concerns about a leak from the bathroom window and a leak to Mr Y’s neighbour’s home prior to the works commencing. The Council responded saying it could not take responsibility for leaks that occurred before works began. It also said the bathroom window leak was found to be caused by defects in the roof for which the Council provided them with a discretionary grant. It reiterated its position on the shower doors.
- Miss X submitted a complaint to the Council on Mr Y’s behalf. She raised issues regarding delay, the distress caused to Mr Y and Ms Z, failure to deal with her complaint of July, the attitude of officers and the outstanding issues with the bathroom.
- The Council replied in January 2020. Its response said:
- there was delay owing to staff absence between November 2018-February 2019 and between May 2019-June 2019;
- other periods of delay were due to trying to incorporate the wishes of Mr Y and Ms Z with the needs identified by the OT;
- it understood works like those carried out could cause stress and anxiety especially to those who are vulnerable. The case had taken longer than usual but that this could not have been anticipated. Efforts had been made to incorporate the wishes of Mr Y and Ms Z as demonstrated by the use of items purchased by Miss X. It said it had kept Mr Y and Ms Z updated and acted in a manner intended to minimise the impact on their mental health;
- explained again the options available to remedy the problems with the shower and said the offer of a visit remained;
- it refuted its communications lacked respect for Mr Y and Ms Z. Some communications had to be clear about matters but these were not disrespectful; and
- Miss X’s email of 30 June had not been identified as a complaint. It had taken her comments about how the complaints process could be improved and would discuss them at the next review of the procedure.
- A visit was planned to Mr Y’s home but this was postponed due to COVID-19.
- Mr Y and Ms Z remain unhappy and Miss X approached the Ombudsman on their behalf. She explained the impact of the delays and works on Mr Y saying that he had been very anxious and at risk of suicide owing to the stress and uncertainty. She also explained there were outstanding issues with the shower, floor discolouration, bathroom wall panels and bathroom ceiling.
- In response to my enquiries, the Council restated its position regarding the shower and wash hand basin cupboard. It also said discoloration of the floor was likely caused by the screws used. The contractor would replace these and the clean the staining. If this did not work, it would replace the flooring although this would require removing the shower doors. It agreed issues regarding the wall panels and ceiling painting remained outstanding.
- The Council’s involvement in this matter began in late November 2018 and the works were not completed until October 2019. The Council has acknowledged this is longer than would normally be expected.
- I have identified the following periods of delay by the Council:
- 12 November 2018 - 7 February 2019
- 10 May- 12 June 2019
- 12 June - 5 July
- 8 July- 25 July
- All of these periods of delay occurred owing to staff absence. While I appreciate the Council could not foresee these problems, cumulatively they delayed the progress of the works significantly. Furthermore, the Council has not shown it had any criteria to prioritise the most urgent cases affected. I would have expected it to do so given the service deals with vulnerable people who might be at risk in their homes without the adaptions being sought.
- It is also evident some delay resulted from discussions which sought to ensure Mr Y and Ms Z’s preferences were accommodated where possible. This included trying to accommodate the bathroom suite bought by Miss X which complicated the design process. While these delays cannot be clearly defined, cumulatively they delayed progress. I do not consider the Council is at fault in this matter. Seeking a compromise would inevitably cause some delay.
- I understand there continues to be water seepage from the shower. Unlike with an enclosed shower cubicle, the Council would normally fit a weighted shower curtain to a shower area. I understand the doors were fitted to accommodate Ms Z’s wishes and are not designed to prevent all water seepage. The shower design installed was the only one that would meet the wishes of Mr Y and Ms Z and their identified needs. For this reason, the Council’s proposed course of action, that Mr Y and Ms Z decided if they want to keep the shower doors or replace them with a curtain, is likely the only solution. Should further analysis of the issue confirm this then it is for Mr Y and Ms Z to decide which option they prefer.
- The Council replaced the wash hand basin cupboard damaged as result of the water seepage but advised damage would likely reoccur if the cupboard was not fitted on the wall. As Mr Y and Ms Z declined this, the Council will not replace the cupboard now it has become damaged again. I do not see there are grounds to ask the Council to reconsider this matter.
- The Council has also offered to carry out works to address the discoloured floor and replace it if necessary. I consider this proposal adequately addresses the matter. It has also said that it will return to paint the ceiling at a time convenient to Mr Y and Ms Z.
- Matters relating to damage to the wall panels are also outstanding. I understand it is unclear if this has happened as result of the panels themselves or how they have been installed. If Mr Y and Ms Z believe the contractor caused the damage, they need to provide evidence to the Council. I cannot expect the Council to arrange replacement of the panels with the contractor without this evidence.
- I am aware these matters have taken a long time to resolve. However, I do not consider there is evidence of delay by the Council. It made arrangements to visit and discuss matters prior to the COVID-19 pandemic which has understandably delayed matters.
Communications from Council officers
- Miss X says some of the communications from the Council’s officers have been disrespectful to Mr Y and Ms Z and have failed to see them as real people. Having reviewed correspondence from the Council’s officers, I cannot agree with Miss X. While some later emails are direct in tone, they needed to clearly set out the available options so Mr Y and Ms Z could make informed decisions. I have seen no evidence of language or phrases that could be construed as disrespectful to them.
Complaint of 30 June
- The Council is at fault in its handling of this matter. It is clear from Miss X’s emails she wanted her concerns treated as a formal complaint and the Council acknowledged this at the time, in the contact centre response of 5 July. Despite this, her concerns were not dealt with as a complaint and were responded to by the officer involved.
- I have identified fault by the Council because of the delay identified in paragraph 46. Miss X has explained how this affected Mr Y and Ms Z. This included frustration, distress, self esteem issues and anxiety. These matters would have been more keenly felt by Mr Y and Ms Z as they already had a history of mental health problems. I therefore consider the fault has caused them injustice.
- I also consider Mr Y and Ms Z would have been anxious using the bathroom while waiting for the works to be completed. The OT clearly identified the bathroom posed a risk.
- To address the injustice I have found, I recommended the Council repeats its apology to Mr Y and Ms Z and also pays them £350. The Council agreed.
- The Council should also write to Mr Y and Ms X within the next fortnight to arrange completion of the outstanding works. It should also repeat its offer to visit to discuss the shower and then write to Mr Y and Ms Z setting out the options. They can then decide which option they prefer. The agreed works should be completed within three months of the visit, COVID-19 restrictions permitting. The Council agreed.
- The Council should also review how it records complaints received through its ‘Contact Us’ email account to ensure they are logged as complaints and responded to by the appropriate person. Complainants should receive an acknowledgment letter advising them who is replying to their complaint and when a response is due. The Council agreed.
- I have ended my investigation of this matter as the Council has agreed to my recommendations.
Parts of the complaint that I did not investigate
- I have not investigated matters before November 2018 because the Council was not involved until then. Miss X would need to complain to the council responsible before we could decide if there was something we could and should investigate.
- I note Miss X said Mr Y was injured using the bathroom in April 2019 while waiting for works to be completed. If she believes the injury resulted from some negligence by the Council, this would be something best determined by the courts. We cannot decide if the Council has been negligent.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman