Decision : Upheld
Decision date : 22 Apr 2021
The Ombudsman's final decision:
Summary: Coventry City Council delayed in its handling of a complaint about its proposed plans for adaptations under a Disabled Facilities Grant. The Council will apologise and make a payment of £200 to recognise the injustice this caused.
- The complainant, whom I shall refer to as Ms A, complains about Coventry City Council's handling of Mr B's application for a Disabled Facilities Grant to meet his daughter's needs in the family home. Specifically, she complains the Council:
- failed to ensure that the approved plans met Mr B's daughter's needs and particularly failed to incorporate sufficient storage for her specialist equipment, allow sufficient space for her to move around the property, use her new wheelchair or provide sufficient space for her home education technology;
- failed to follow the recommendations of its own child and family assessment or to review these when Mr B highlighted this;
- failed to properly consider whether it should use its section 17 budget to pay the cost of the adaptations above the DFG limit of £30,000;
- wrongly implied the family are seeking a luxury extension; and
- failed to deal with complaints in a timely fashion. Mr B says the stage 2 complaint was submitted on 26 November but the Council did not respond until 29 January 2020.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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 considered the information Ms A provided with the complaint and made written enquiries of the Council. I considered all the information before reaching a draft decision on the complaint.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
- Mr D and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.
What I found
What should have happened
- A Disabled Facilities Grant (DFG) is awarded by the housing authority to make adaptations to the home which are ‘necessary and appropriate’ to meet the disabled occupant’s needs. Usually the housing authority relies on the opinion of an occupational therapist to decide what is necessary and appropriate and may also consult children’s services. It would be expected that children’s services take account of the professional opinion of others including, for example, medical and education professionals. In addition to considering the child’s needs, children’s services should also consider how the needs of the rest of the family are affected by the needs of the disabled child. Once the housing authority has information about what adaptations are necessary and appropriate, it has to consider whether these adaptations are reasonable and practical and for major adaptations it will arrange for someone else or draw up plans itself and it will often want cost estimates to accompany these plans. The housing authority should not refuse to consider a scheme because it would cost more than the DFG limit.
- Adaptations may need to provide space for nursing and medical needs or to account for space for a carer to provide care and these can also amount to adaptations to meet the disabled person’s needs.
- A DFG to meet the needs of a disabled child is not means-tested but it is capped at £30,000. Grants are only approved if the council accepts the work is necessary and appropriate to meet the needs of the disabled person.
- Section 2 of the Chronically Sick and Disabled Person’s Act 1970 (CDSPA)sets out the duties of councils to arrange for adaptations to a person’s home to secure his or her greater safety, comfort or convenience.
- If an adaptation is required to meet an assessed needs and the cost will exceed the maximum DFG amount, the outstanding amount should either be met by the housing authority under discretionary powers or by children’s services under its duties under the CDSPA. It is not lawful for a council to refuse to make adaptations which have been assessed as necessary solely for reasons of cost.
- An approved DFG must be undertaken within a year of the approval or it expires. If there is delay in starting works and this causes hardship the children’s services team should be pressed to carry out the works under their parallel duties under the CSDPA 1970. The fact that a DFG is available does not detract from the Council’s core duty under the CSDPA 1970 in relation to where a council assesses a disabled child as requiring adaptations to the home.
- Children’s services have a duty under section 17, Part 3 of the Children Act 1989 to safeguard and promote the welfare of children in need in their area. Essentially this means that a child in need is a child who needs support from the council to meet their potential. A disabled child is considered to be a child in need under section 17.
- Section 17(6) of the Children Act 1989 states that financial assistance may be provided under this section of the Act to promote a child’s welfare where there is no other legitimate source of financial assistance. It also states that such financial assistance may be unconditional or subject to part or full repayment and that before providing financial assistance or imposing conditions (such as repayment) the council will take account of the parents and the child’s financial circumstances. It goes on to confirm that where parents are in receipt of universal credit, income support or some tax credits then repayments cannot be required.
- The courts have decided that the general duty to safeguard and promote the welfare of children in need under section 17 of the Children Act 1989 is broad enough to encompass major adaptations.
- Guidance in DCLG guidance of 2006 “Delivering Housing Adaptations for disabled people: a good practice guide” stated that if an individual’s needs for a major adaptation could not be met through a DFG fully or partly then a duty remained under the CSDPA as social services departments have a duty to ensure that assistance required by disabled people is secured. The courts (in case law R (Spink) v Wandsworth 2005) have said that section 2 of the CSDPA is in effect a legal extension of part 3 of the Children Act 1989.
- Coventry City Council has a two stage corporate complaints procedure after an informal stage if a resolution is not reached under that informal process. At the first stage the service that is the subject of the complaint provides a response and this is provided in 10 working days stating either that the complaint is upheld or that it is not. The complainant may then request further consideration at stage 2 of the procedure. If accepted at stage 2 a review is conducted by a senior manager and a response provided within 20 working days unless they are advised this will not be possible when they will be provided with an estimate of how long it will be before a response is provided.
- Mr B’s daughter, X, is eight years old and lives at home with her parents and siblings. She has multiple disabilities and requires a large amount of medical and care support including constant ventilation. She uses a wheelchair for all activities inside (and outside) the family home. She is unable to attend school and is educated using technology and twice weekly visits from tutors. The room X uses as a bedroom currently was originally a family living room. The family now uses another adjacent room as their only living room.
- Mr B and his wife do not work and are full time carers for X. The family’s income is restricted to state benefits which include disability living allowance, carer’s allowance, child benefit and tax credits. They own their own home which is a small terraced property.
- In the complaint Ms A confirmed that X spends most of her time in her bedroom due to her medical needs and restricted mobility. She says that X has outgrown her current wheelchair and needs to begin to use a specialist wheelchair which cannot be accommodated in her current bedroom and the family believe that it would also not fit into the bedroom as detailed in the current plans. As I understand it X’s bedroom is at the front of the house on the ground floor. She is unable to use stairs and the only bathroom downstairs is at the rear of the property so some way from X’s bedroom and is either up or down two steps which she cannot negotiate in her wheelchair. She is currently bathed in a specialist bath which is placed in her bedroom but which is unsuitable for a child or her age and size. She needs a new specialist bath and to be able to access this. I understand that a charity has agreed to provide such a specialist bath which is therapeutic in addition to being a normal bath but as there is nowhere to put it in the house currently X does not yet have this.
- The Council confirms that it provided the family with ramped access to the front of the property in 2012.
Background in relation to DFG and adaptations
- The Council says that an assessment in 2013 agreed X was eligible for help to access bathroom facilities. As I understand it plans were drawn up at that stage to provide X with a bedroom with access to bathing facilities in the existing family bathroom by constructing an extension at the back of the property and to convert the upstairs toilet to a shower room to provide bathing facilities for the rest of the family. The social work report notes that the family considered the proposal was too small to accommodate all X’s equipment and wheelchair etc. The social worker says the family submitted its own plans then which was for a much larger extension and conversion that included a new bathroom for the family, an additional storage room as well as a new bedroom and bathroom for X on the ground floor. My understanding is that the Council continued to be of the view that its plans were adequate to meet the identified needs and that if the family wanted to pursue its own larger plans they would need to meet the cost of this above £30,000 themselves. The social worker states in her report that the family believed family members would be able to help with this and so sought financial assistance from family members at the time but they were unable to help. The records state that the DFG application did not proceed then as the Council was unable to successfully contact Mr B to make progress on this.
- A further assessment was then completed in 2015 and this again concluded that X was eligible for a DFG for adaptations to provide X with a new bedroom and bathing facilities at the rear of the property. The Council confirms that X’s current bedroom was originally the front downstairs living room. It says that in 2015 the Council again accepted that X needed a new bedroom for her and for her equipment (described as life-saving to which she needs constant access) and so it agreed a DFG to provide a new bedroom and that this would be next to the bathroom which would make movement for X between her bedroom and the bathroom easier. The lowest quote for the 2015 plans was just over £40,000. The Council says that four different schemes were drawn up between 2015 and 2017 but that none of these progressed as Mr B was unhappy with all of them. These included:
- in 2016 the Council received three quotes to complete the adaptations in the scheme agreed in 2015. These ranged between around £41,000 and £46,000. The records suggest that around that time Mr B had suggested he wanted to get alternative work done to that approved under the DFG and had asked the Council about a direct payment rather than using the DFG. The Council asked him for further information about his plans in this regard but it appears he did not provide this. In March he instead provided copies of plans he had asked his own architect to draw up. These included a larger range of adaptations including an additional bathroom on the ground floor separate to that which would be for X’s use. He submitted this for planning approval. The Council asked him to provide three quotes for the works in this amended plans to cost for the original works agreed and for his new plans. In August the Council’s records show that Mr B had decided he would proceed with a direct payment and have the works carried out privately. The Council duly closed its case;
- in 2017 a scheme was drawn up that cost around £41,000. Mr B told the Council that he could not afford to pay the £11,000 difference and he therefore asked the Council’s children’s services team to assist with this. Planning approval was given to the works in 2017. Mr B identified contractors to complete the works then but unfortunately the firm he identified went bankrupt and the Council asked him to approach another company. The Council’s records show that the Council approached a large number of contractors that Mr B nominated to do the works during 2017. In September 2017 one of the contractors quoted the identified work as costing around £57,000 and another one quoted around £50,000. Another at £44,000. These were forwarded to Mr B. Mr B found his own builders quote for around £40,000 in November 2017. In December 2017 Mr B emailed the Council to say his preferred contractor was the one quoting around £40,000 and he stated in his email that he would raise the additional funds;
- The Council’s records show that in 2017 Mr B put forward plans which would cost around £120,000. The Council says it did not describe this as a luxury extension and I have seen nothing in the Council’s notes which state this or make any similar comment.
- An in-depth social work assessment was conducted in August 2019 following Ms A’s complaint to the Council. The social worker’s analysis concluded that the extension to the family’s property needed to be moved on quickly for X’s wellbeing and that of the whole family. She said “It could be argued that the delay in progressing the adaptation has hindered X’s development as she has been unable to have the equipment that she needs for her independence”. She went on to say that “…there is a clear need to revisit the plans proposed by the local authority and the plans proposed by the family and some compromise needs to be reached” and also “Due to X’s care needs there is no doubt that any plans which are proposed will exceed the £30,000 DFG grant but the proposed plans by the family over exceed what the local authority would consider to be reasonable and some compromise needs to be reached…therefore a new OT assessment needs to be carried out…”
- Ms A has pointed out that the social work report specifically said that the size of the proposed bedroom for X needed to be reviewed as there was little difference to that of her current bedroom and there needed to be sufficient space to store equipment, her wheelchair and for the size of the doors to enable her to move around.
- A new OT assessment was carried out in Summer 2019. This identified the main issue as the bathing arrangements for X. The OT confirmed that the current arrangement was that X was bathed in a specialist bath placed in her bedroom and that this was too small for X as it was one that had been provided and was suitable when she was younger and smaller. It confirmed that X was unable to access the bathroom with or without help as access was via two steps and some distance from her bedroom. The OT confirmed the DFG was primarily to address this issue. In his summary of the assessment the OT said that the purpose of the assessment was to consider whether plans drawn up in 2017 would still meet X’s needs. Mr B believed the size of the bedroom for X would be smaller than her current room and argued that he considered she needed a larger bedroom than her current one to accommodate a new specialist wheelchair, space for education technology, storage of her medical supplies and enough room for carers to be in the room with her at all times. Essentially the OT suggested that X’s bedroom did not need to be used for storage of all X’s medical supplies as these could be moved into other areas of the house that the extension work would free up and the absence of these stored items would mean the bedroom would be big enough. Mr B was unhappy with this as he said it would entail losing a sofa in the family’s living room and that it would mean that quarterly professionals meetings about X held in the house would no longer be possible as they would no longer be able to safely accommodate all the attendees. In addition Mr B wanted to locate X’s new bathroom elsewhere in the property in order to ensure that its use by other family members did not disturb X when she was asleep. The OT suggested that alternatively the bathroom could be left as originally planned and the bath could be relocated into her bedroom. Mr B did not want this. The OT agreed to discuss the proposals with the head of the OT service and his report notes that he then drew out plans with the bed, wheelchair, education equipment and an armchair on it to see how it all fitted in on the plan. As a result the OT agreed that the current access to the bathroom should be altered and that this changes would ensure that, with the exception of this change, the 2017 plans would meet X’s needs.
Complaint to Council
- Ms A submitted a complaint at stage 1 of the Council’s corporate complaints procedure in May 2019. She said that whilst Mr B had been awarded a DFG of £30,000 to carry out adaptations to the property to meet X’s needs his most recent builder’s quote for works Mr B considered necessary to meet X’s needs was for around £95,000. She said that neither Mr B nor his wife were in employment so could not afford to pay the difference. She said the Council had a duty under legislation (the Chronically Sick and Disabled Persons Act 1970 and the Children Act 1989) to provide adaptations and consequently asked the Council to pay the difference to complete the required adaptations to the property.
- The Council’s children’s services team provided a substantive response at stage 1 of the complaints procedure in June 2019 (around 4 weeks from the date of the complaint). This stated that:
- the OT assessment considered that necessary adapations to the home could not be completed for £30,000 but could be achieved for less that £40,000;
- whilst the children’s services team had completed an assessment it had not considered whether children’s services should provide funding for adaptations over and above the £30,000 limit of the DFG. The Council therefore agreed that it would undertake such an assessment to take account of the OT recommendations within four weeks and decide whether section 17 should be engaged and funding provided under this.
- the OT had fully considered whether the proposed bedroom for X would be able to fully accommodate her equipment. She said the conclusion of this consideration was that it could. In response to Mr B’s concerns that the layout of the family home under the proposals would mean that X’s access route to and from her bedroom would mean her passing through the middle of the family’s living space arrangements the OT proposed accommodating this by changing the location of a door but Mr B did not want this as it would affect the way furniture could be fitted into the next door living room as the changed door placement would open into that room;
- the OT’s assessment had already taken account of the storage and usage needs of X’s specialist education equipment and could properly accommodate this;
- the OT had taken account of X’s use of an adult sized wheelchair in her room so it could already accommodate this and also that it could be used by X to get to other parts of the house and that there was room to store it;
- she would arrange for a financial assessment to be undertaken to fund the additional amount of the agreed proposals; and
- the OT assessment had been reviewed and it was the Council’s view that the proposed plans from 2015 met X’s assessed needs.
Was the council at fault and did this cause injustice?
- As I have stated above it is not my role to reach a decision on whether the Council’s actions are right or wrong. It is to consider whether there was fault in the way the decision was reached. I recognise that Mr B does not agree that the Council’s plans meet his daughter’s needs. It is not for me to reach a decision on whether or not they do but to consider how the Council has addressed these needs and taken his concerns into account. From the information and evidence I have seen it is clear that the Council has addressed this matter in some depth on a number of occasions and concluded that, whilst it recognises that Mr B would prefer a different scheme, its OT’s professional opinion is that the plans have allowed for sufficient storage for specialist equipment, there is sufficient space for X to move around the property, use her specialist wheelchair and accommodate her specialist educational technology.
- The Council’s children’s social work team arranged for an assessment to take place in August 2019 as a result of the complaint. The social worker considered the adaptation should be expedited and that there should be some kind of compromise between the Council’s proposed plans and those of the family and consequently recommended that a new OT assessment should be conducted. A new OT assessment was completed and a change to the door size was agreed as a result of this. There are therefore no grounds for me to conclude that the Council failed to take proper account of the social worker’s recommendations: the social worker recommended the proposed plans should be looked at again; the OT did this and made some changes. The social worker was not professionally qualified to make a decision on what adaptations would meet Mr B’s daughter’s needs. This was for the OT to consider and the OT made a professional judgement on this and gave reasons for this in his report. So, I conclude there is no evidence the matter was not properly reconsidered at this point and it is not my role to reach a view on the rights or wrongs of the professional judgement he reached.
- The law is clear in stating that finances alone should not be a reason for a Council to delay in completing adaptations that are considered necessary for a disabled person in their home. The situation here is not however limited solely to the cost but also to disagreement about what is required: Mr B maintains that more is required than the Council and is unhappy with the plans that the Council considers will meet X’s needs. Had Mr B been agreeable to the plans put forward by the Council I would have considered it fault had the Council not properly consider whether it should provide additional funds to meet the costs in excess of the DFG due to its duties under the CDSPA and the Children Act 1989 if Mr B had stated he was unable to meet the additional cost. However, Mr B has not agreed to the works and seems to have said on a number of occasions that he would be in a position to fund the cost above the £30,000 limit. It was not until Ms A’s complaint in 2019 that there appears to have been any suggestion by Mr B that he was not in a position to pay the difference between the DFG and the amount the works would require.
- The Council has provided evidence to confirm that in December 2019 Mr B refused a financial assessment and that he said in July 2019 that he would need to agree a suitable design before considering funding. I therefore accept that the Council offered to complete a financial assessment having said it would do this and that it is clear that it is Mr B that has stated he will not discuss finances until he agrees with the proposed plans. The Council argues it cannot properly consider how to fund the amount above the DFG limit until it knows how much this will be and this is obviously dependent on the agreed scheme. But it cannot progress with this as it has no agreement from Mr B on the scheme. The situation does not seem resolvable until there is agreement on the scheme but there are no grounds for me to conclude this is the result of fault by the Council.
- Ms A says that the Council described the family’s plans as a “luxury extension”. The DFG requirements are that the works agreed under a DFG are “necessary and appropriate” to meet the disabled person’s needs and the Council seems to have taken this approach properly in respect of the adaptations in this case. In addition I have not seen Mr B’s plans referred to in this way in the records I have seen. There are no grounds therefore for me to make a finding of fault in relation to this part of the complaint.
- I consider there was fault in the Council’s handling of the complaint in that it appears to have repeated the stage 1 consideration stating it usually does this and that the second stage 1 consideration is a review of the first response. This is contrary to its published policy and delayed fully completing the consideration at stage 1 and also delayed in providing a response at stage 2. These delays caused injustice in the form of avoidable frustration to Mr B.
- The Council will formally apologise to Mr B for the delay in its handling of the complaint.
- To further recognise the identified injustice these failings caused it will make Mr B a payment of £200.
- The Council must ensure that in future it considers complaints as provided for in its published complaints procedure and that this is done in a timely manner. It should provide me with details of how it will ensure this within one month of the final decision on the complaint.
- The Council was at fault in delaying in its handling of the complaint. It should take the action identified above to remedy this.
Investigator's decision on behalf of the Ombudsman