Decision : Not upheld
Decision date : 23 Feb 2021
The Ombudsman's final decision:
Summary: The Council has properly considered what is reasonable and practical to provide under a Disabled Facilities Grant. Mr C has not received adaptations he needs to his property to meet his adult social care needs, but that is due to a dispute over what is reasonable and practical rather than through any fault of the Council.
- The complainant, who I will call Ms B, says the Council has not properly considered the needs of the whole family when looking at feasible options for adaptations funded by a Disabled Facilities Grant. The process has taken too long, the Council has not been consistent, and has not given a good or fair explanation about why her father (Mr C) cannot have an extension. Mr C says:
- The council have not taken into consideration my wife's and son's needs and conditions when considering the size of the adaptation.
- I believe my right under Article 8 has not been respected and somewhat infringed. This is the same for my wife and son. Ultimately it seems my right to live my life privately without control or interference by a public body has been trespassed upon and my enjoyment of living in my home peacefully has also been overstepped.
- The poor level of service I received and the poor decision making which led to the delay on the length of time I have been without an adaptation and bias.
- The Council has not explained whether not taking a portion of the lounge is feasible. This point has been disregarded in its responses.
- Different people have been dealing with this case with different biased views. There has been no consistency. Council staff seem biased in their views, supporting one another and seem not to be balancing all interests.
- The constant challenging by the Council, having to explain the needs over and over and to different people, repeated assessments, having decisions overturned and frequent communications has caused me unnecessary aggravation. It has had a negative impact on my well-being. It has led me to much anxiety. Excessive and unnecessary stress. I and my wife’s, and son’s wellbeing and enjoyment of using our home safely and peacefully have been invaded. Furthermore, I am suffering from a severe irritable skin condition where creams are not helping. To have a delay of over a year for my adaptation is not helping with my itchy skin. I feel I am a burden on my family by asking them to scratch. I feel this may be upsetting and distressing for them too with my constant repeated requests. It has become challenging and has added to the strain and relationships I have with my family.
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:
- Information from Ms B, including during a telephone conversation.
- Information from the Council in response to my enquiries.
- The Housing Grants, Construction and Regeneration Act 1996.
- Guidance issued by the Home Adaptations Consortium called ‘Home Adaptations for Disabled People. A detailed guide to related legislation, guidance and good practice.’
- The Council’s guide called ‘Newham’s Guide to Information and Services for Home Adaptations.’
- The Human Rights Act 1998.
What I found
- Mr C lives at home with his wife and children, including Ms B. Mr and Mrs C both have bedrooms on the ground floor of their house, there is a toilet on the ground floor and a stairlift upstairs to use the bathroom.
- Mr C cannot use the stairlift so has been unable to have a bath or shower for over five years. In 2018 the Council assessed Mr C needed a shower room on the ground floor. In the meantime, Mr C’s carers give him a strip wash in bed.
- The works to Mr C’s home would be funded by a Disabled Facilities Grant up to the value of £30,000. The law says the works must be necessary and appropriate to meet the needs of the disabled person; the Council decided this is the case.
- The Council must then assess the proposed works are reasonable and practical. This is where Mr C’s case is delayed, there is dispute between Mr C and the Council over what works are reasonable and practical.
- Mr C wants an extension from the existing downstairs toilet into an external passageway. The Council’s proposal is to extend the existing downstairs toilet into the external passageway but also extend into the family living room by 500mm.
- Mr C says this is the main room where all family spend time and making it smaller is not reasonable and practical. Mrs C has mobility issues and uses crutches or a wheelchair in the home, Mr C says making the room smaller will impact her space to manoeuvre and increase her risk of falls. One of Mr C’s children has epilepsy and is hyperactive. Mr C says making the room smaller does not give the family sufficient space to keep the child safe if having a seizure or to supervise the child while he calms down.
- The Council proposed an alternative which was for Mrs C to move to a spare bedroom upstairs. The Council would provide a Prevention Grant to fix up the bedroom so the family could move the boiler, fix a leaking roof, and remove existing damp. Mr C could then move to Mrs C’s downstairs bedroom and have an en-suite shower room created. This option would not impact on the family living space. Mr C says this option is not reasonable and practical, he says the upstairs bedroom is small and not practicable as a bedroom. The stairlift does not go far enough so Mrs C would need to negotiate some steps which would put her at risk. Mr C says it is unfair to expect Mrs C to give up her current bedroom.
- Mr C says the Council is breaching his Human Rights, and not respecting his right to enjoy his home.
- The Human Rights Act 1998 brought the rights in the European Convention on human rights into UK law. Public bodies, including councils, must act in a way to respect and protect human rights. It is unlawful for a public body to act in a way which is incompatible with a human right. (Human Rights Act 1998, section 6)
- It is not our role to decide whether a person’s human rights have been breached. This is for the courts. We decide whether there has been fault causing injustice. Where relevant, we consider whether a council has acted in line with legal obligations in section 6 of the Human Rights Act. We may find fault where a council cannot evidence it had regard to a person’s human rights or if it cannot justify an interference with a qualified right.
- The Act sets out the fundamental rights and freedoms that everyone in the UK is entitled to. Article 8 protects your right to respect for your private life, family life, your home and your correspondence. You have a right to enjoy your existing home peacefully. Public authorities should not stop you entering or living in your home without very good reason.
- The Council has considered this but does not accept it has restricted any of the family’s right to a private and family life. The Council explains its scheme is dependent on using a small section of the family living room, and there are options to increase family living space if the family choose to make some adjustments which the Council thinks are reasonable.
- The Council has attempted to resolve matters by a team manager and surveyor visiting the property and has given full and detailed written responses to Mr C’s complaint. The Council explains it has tried to come to an agreed way forward to provide the needed facilities in the most cost-effective way. If it accepted customer preferences without robust challenge it could lead to a poor use of public funds and an inconsistent service to its customers.
Is there fault causing injustice?
- The Council accepts a slight delay at the start of its service; this is fault. But that is not the reason Mr C has not received the needed adaptations. That is because of the dispute over what is reasonable and practical. The Council has apologised to Mr C for its delay, which is appropriate to acknowledge the fault.
- It is not the Ombudsman’s role to decide what works are reasonable and practical under the Disabled Facilities Grant scheme to meet Mr C’s needs; that is for the Council to decide. I must look at how the Council has reached its decision that its offered schemes are reasonable and practical.
- The Council’s guide says it will try the simplest and most cost-efficient adaptation first, within the structure of the existing property. The guide says the Council will always respect your home and feelings but will identify and recommend solutions that are the most cost effective before exploring other more costly options. This is what the Council has done.
- At one point the Council did agree to an extension at the rear, which is Mr C’s preferred scheme, but a manager then reviewed and overturned this decision. The reasons for this were that the extension to the rear would block access to the garden, reduce natural light and ventilation in the family living room, the cost would exceed the £30,000 limit and Mr C has said he has no means to contribute.
- The Council has valid reasons for refusing the rear extension, but the fact it was at one point approved has raised Mr C’s hopes and expectations. It is understandably disappointing for Mr C that this scheme was subsequently refused.
- Both parties have suggested a side extension, but on the Council’s proposed plans this also includes extending into the family living room. I cannot say it is fault for the Council to suggest this, despite the family’s strong views against it. The Council has considered the family’s concerns and has suggested alternative schemes because of that.
- I can see no reason for the Ombudsman to criticise the Council’s view on what is reasonable and practical given I can see no fault in how it has reached its decision. The Council has considered Mr C’s views on what is reasonable and practical, the space available following a visit to the property, and its own guidance regarding looking at the most simple and cost-efficient scheme first.
- I also can see no reason to criticise the Council’s view on Mr C’s Human Rights as it has had due regard to this in response to Mr C’s concerns.
- I recognise it is difficult for Mr C and his family, as Mr C has not had adaptations to his property which he needs to enable him to have a thorough wash and says this is irritating his skin condition. However, I cannot say this injustice is caused by fault of the Council.
- I have completed my investigation on the basis there is no fault by the Council.
Investigator's decision on behalf of the Ombudsman