Summary: We upheld complaint from Mr X about a lack of support from the Council when his daughter’s through-floor lift broke down. The Council failed to offer interim support or meet Mr X’s costs when the family had to stay away from their home. As a result, Mr X and his family suffered a significant injustice. The Council agreed to pay a financial remedy to recognise the injustice caused and review its internal procedures.

The complaint

1. Mr X complains on behalf of himself and his daughter, Miss Y, about delays in the Council carrying out repairs to her through-floor lift. He says because of the delays she had to sleep in her wheelchair and then in hotels. Mr X says he, his wife and Miss Y have suffered sleep deprivation, stress, and financial loss. He would like the Council to recognise its failings, explain why it did not provide interim help to Miss Y, and remedy the financial and emotional harm caused to the family.

Back to top

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’. 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)
3. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. We cannot find that an organisation has breached the Human Rights Act 1998. However, we can find an organisation at fault for failing to take account of its duties under the Human Rights Act.
6. 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)

Back to top

How I considered this complaint

7. I have considered the complaint made by Mr X and the documents he provided.
8. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
9. I took account of the Ombudsman’s focus report ‘Making a house a home: Local Authorities and disabled adaptations” published in March 2016.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background

Disabled Facilities Grants

11. Councils have a statutory duty to provide grant aid to disabled people for adaptations. Disabled Facilities Grants (DFG) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. There is also detailed non-statutory guidance on good practice, ‘Delivering Housing Adaptations for Disabled People: a detailed guide to related legislation, guidance and good practice.’
12. The guidance says a person and their carers should receive a seamless, joined up service and that a lack of coordination between agencies and poor communication characterise the experience of many.
13. The guidance also says that where the process to secure a long-term solution will be lengthy, then it is appropriate for interim help to be provided through equipment or temporary works. It says it is not acceptable that the disabled person should be left without interim help for a period of weeks or months.
14. The guidance says in some circumstances the extent of the works involved in an adaptation will make the property unfit for the disabled person to continue living there while the work takes place. Where the period of disruption is expected to only be a few days then the disabled person may be able to stay with friends or family or take a holiday. The social services and housing authority should consider meeting all or part of the costs arising from such arrangements.
15. The guidance recommends local authorities introduce target timescales for each stage when carrying out adaptations. There are three stages:
• Stage One is from the enquiry at first point of contact to referral to an Occupational Therapist.
• Stage Two is from the Occupational Therapist recommendation to approval of a scheme.
• Stage Three is from the approval of the scheme to the completion of the works.
16. The recommended timescales vary according to whether the work is ‘urgent’ or ‘non-urgent’. For urgent cases the guidance says the whole process should ideally be completed within 55 working days; comprised of up to 5 working days for Stage One, 30 working days for Stage Two and 20 working days for Stage Three.
17. The Ombudsman expects councils to follow non-statutory guidance unless they can provide evidence for any decision to depart from it. Our focus report identified other examples of good practice including:
• Setting out how assessments and applications for adaptations will be prioritised.
• Implementing protocols between social services and housing departments which set out the key responsibilities of each party and the timescales for meeting them.
18. The Council’s private sector housing renewal assistance policy says applications for assistance should include estimates from at least two separate contractors for the cost of the works, unless the Council has directed otherwise.

The Care Act 2014

19. The Care Act 2014 sets out local authorities’ duties to promote individual well-being, provide care and support and keep people safe. In the Act, a local authority is defined as:
• a county council in England,
• a district council for an area in England for which there is no county council, or
• a London borough council.
20. The Act places a duty on local authorities to cooperate with each of its relevant partners, and on each partner to cooperate with the authority. The Act lists district councils as a relevant partner. The purpose of the duty to cooperate includes promoting the well-being of adults with needs for care and support and of carers in the area.
21. The guidance which accompanies the Act emphasises the importance of suitable housing to a person’s well-being and of the need for coordination between social care and housing services.

Human Rights Act 1998

22. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes Article 8, “respect for private and family life”. The Act requires councils to respect and protect individuals’ rights. The right to private and family life is a qualified one, and so can be interfered with in certain circumstances.
23. The courts in Conors v UK (2004) described Article 8 rights as being “of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a central place in the community”.
24. It is not our role to decide whether a council has breached the Human Rights Act, this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in their treatment of them, when considering a complaint.
25. Organisations will often be able to show they have properly taken account of the Human Rights Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

Guidance from the Ombudsman

26. The Ombudsman publishes guidance on good administrative practice and on effective complaint handling for councils.
27. Our guidance on good administrative practice says councils should ensure they inform service users of what they can expect and what the organisation expects of them. Councils should be open and clear about policies and ensure information and any advice provided is clear, accurate and complete.
28. Our guidance on effective complaint handling reminds councils to investigate the issues, taking into account all the available facts and evidence. It says a good decision letter will set out the statement of complaint, what steps have been taken to investigate the complaint, what the investigating officer has taken account of, their decision and reasons for it, and any actions to be taken next.

What happened

29. The amount of information provided by Mr X and the Council was considerable. In this decision, I have not referred to every element of that information, but I have not ignored its significance.

Replacing Miss Y’s through-floor lift

30. Miss Y has complex medical needs and uses a wheelchair. She lives with her parents, Mrs and Mrs X, who are also her carers. She uses a through-floor lift to access her bedroom and adapted bathroom which are in a first-floor extension to the family home.
31. In March 2016 Company A, which serviced and maintained the lift, said it was becoming worn and was unlikely to be able to be repaired when it next broke down. Mr X contacted the Council that month to request a grant to replace the lift. The Council told Mr X to contact the county council to request an occupational therapy assessment.
32. An occupational therapist employed by the county council completed an assessment in July. The occupational therapist was concerned about the existing lift breaking down and Miss Y spending increasing time in her room due to fear of the lift breaking down with her in it. They asked the Council to allocate the case urgently.
33. Another company, Company B, provided a quote for the work alongside the occupational therapist’s recommendations. It noted there would be a lead time of six to eight weeks and Miss Y would be unable to use the lift for two to three nights during the replacement so would have limited access to her bathroom.
34. Mr X completed an application for a Disabled Facilities Grant in September.
35. Mr X says the Council asked him to identify two companies for it to seek quotes from. Mr X invited Company A to provide a quote. It visited his home in October, but Mr X says he did not receive its quote for the work until late December. He made the Council aware of the delay in November and said if it the quote was not received by December, he would contact another company from the list the Council had given him. Company A sent Mr X its quote in December, and he shared it with the Council. The quote indicated the work could be completed within one month.
36. The Council told Mr X he would need to pay the difference between the two quotes if he wanted to use Company A, as it was more expensive that Company B. However, in February 2017, the Council told Company A it had approved the Disabled Facilities Grant and asked it to order the lift as soon as possible. Although Company A’s quote was more expensive, the Council agreed to pay the grant as Miss Y had already been waiting several months, the existing lift was in a dangerous condition and Miss Y was scared to use it. It asked Company A to order the lift as soon as possible and contact Mr X to agree a start date.
37. An internal file note added by an officer in the same month noted several errors in the case. It said there had been a delay obtaining; the surveyor did not contact Mr X; the lift had become unreliable and dangerous; the applicant form had been incorrectly completed; and Mr X had experienced difficulties contacting the Council. It noted Company A had guaranteed it could install the lift within four weeks of approval and so the Council had agreed to pay the higher quote for the work.
38. At the end of February, the Council notified the county council that the grant had been approved. There was no further communication between the two councils after this date.
39. Company A asked the Council to pay a 30% deposit for the work. The Council explained the work would be paid for in full on completion. Mr X was unhappy with the time taken for Company A to issue a quote and begin the work. He noted the Council had agreed to pay the grant to Company A despite it being more expensive on the basis it could carry out the work quickly. He said Miss Y was scared to use the lift. In an email to Company A, which he shared with the Council, Mr X said:

“Settlement moneys are down to the council, not me, as they are providing the Grant, and I would have had no cause whatsoever, to read your terms and conditions, they are of no interest to me, and it is not up to me to accept or reject them.”

40. The Council confirmed the technical specification of the lift with Company A on 1 March. On 8 March, the Council emailed Company A again. It said:

“…the council awarded the contract to your company following a conversation between myself and you prior to the approval being made official. I asked you to give me an idea of how long your company would take to order and install the new lift and you told me 4 weeks. On this basis because Mr X (the Client) wanted the lift done quickly, the council agreed to approve your company’s quotation.”

It asked Company A if it was still willing to undertake the work.

41. Company A said it could install the lift at the end of April. Mr X agreed for the work to go ahead.
42. On 17 March, Miss Y’s lift broke down while she was using it. She remained in the lift for some time before she could leave it safely. Miss Y spent two nights sleeping in her wheelchair until Mr X could find suitable alternative accommodation for her. Mr X told the Council about the lift breaking down on 19 March.
43. Mr X complained to Company A about the delays in installing the replacement lift and the impact this had had on his daughter, himself, and his wife. Company A told Mr X it had decided not to continue with the order for installing a new lift. The Council immediately contacted Company B for a revised quote.
44. Over the next two weeks, Miss Y spent time in three different hotels and some nights at home as the family were unable to cover the high cost of hotel accommodation. Mr X says he had to transport specialist equipment between the different places Miss Y stayed. He says he also had to carry out standing transfers due to the lack of hoist to assist his daughter in and out of bed. He says this has caused him long-term pain. He says his daughter’s health was put at risk, and his wife suffered stress as a result of caring for their daughter in unsuitable surroundings.
45. The family then travelled to a relative’s home which had adapted facilities for Miss Y to use. They remained there until the lift installation was complete. In May, Mr X asked the Council whether it could provide temporary accommodation in the event Miss Y and Mrs X needed to return before the work was carried out. The Council said it could not, and recommended he contact local letting agents.
46. Company B installed a new lift in June 2017. Mr X was happy with the work completed.
47. In an email to Mr X in January 2018, the Council said:

“I can confirm that under the DFG legislation local authorities do not have any legal contract with any contractor, we merely hold the funding and will release funding to a contractor once the applicant is happy with the work and the local authority have inspected. The only contract exists between the applicant and the contractor, hence the reason we ask the applicant to either choose a contractor from our list and sign to confirm this fact or the applicant obtains their own quotations.”

The Council has not provided a copy of any document signed by Mr X confirming his understanding of the contract arrangements.

Mr X’s claims and complaints

48. In February 2018, Mr X issued a claim in court against Company A for the expenses he incurred because of its delays and failure to replace the lift. Company A’s representative told the court its contract was with the Council and that neither Mr X nor Miss Y had signed any agreement with it for the lift to be installed. In July 2019, the court dismissed Mr X’s claim.
49. Mr X then complained to the Council and said he intended to make a claim against the Council for the expenses he had incurred. He also asked for a meeting with the Council’s solicitor to discuss the situation. Mr X asked the Council to confirm whether Company A had a contractual obligation to him, and whether this meant he might be able to appeal the court’s decision.
50. The Council passed his complaint to its insurer. In November 2019, the Council’s insurer wrote to Mr X. It said the Council did not owe a duty of care to Mr X and was not liable for Company A failing to install the lift as planned. It said there was no contract between Mr X and the Council, and the Council did not enter into a contract with Company A. It said the Council’s discussions with Company A only went as far as “exploring the possibility of entering into a contractual relationship.” It urged Mr X to seek independent legal advice.
51. Mr X complained to the Council again in April 2020. He felt the Council had misled its insurers.
52. Between June and August 2020, the Council wrote to Mr X several times, stating there was no contract between it and Company A. It explained any contracts issued under Disabled Facilities Grants are between the householder, in this case Mr X, and the contractor. It offered Mr X a meeting in June 2020 but said it would only answer questions about the Council’s responsibilities and not about other parties involved in the dispute. However, by this time Miss Y was shielding and Mr X was self-isolating in response to the COVID-19 pandemic, and so he did not take up the Council’s offer.
53. Mr X complained to the Ombudsman in September 2020.

Analysis

Replacing Miss Y’s through-floor lift

54. From initial enquiry to the work being completed took over 300 working days. However, I cannot hold the Council responsible for all the delay in this period. It was not responsible for how long the county council’s occupational therapist took to provide their recommendations nor for the delay in Company A providing a quote for the work. Once Company A decided not to complete the work, the Council acted promptly to arrange for Company B to do so.
55. In response to my investigation, the Council said if it could have engaged Company B or another company instead of Company A it could have installed a replacement lift by the end of 2016. This is highly speculative and in my view is not supported by the evidence. The Council’s policy was for two quotes to be sought and there is no way of knowing whether another company would have provided its estimate sooner than Company A or have been able to carry out the work at that time.
56. The Council could not compel Company A to complete the lift installation once it had decided to withdraw from the arrangement. However, once the Council became aware the lift had broken down and there was likely to be a delay in completing the agreed works, it should have considered what interim support Miss Y needed. The Council was aware from at least July 2016 that the lift was at risk of breaking down and that Miss Y was likely to be without the use of the lift while the work was carried out. There is no evidence it anticipated what might need to happen in either case or planned what support Miss Y might require. When I asked the Council about what arrangements it had made to meet Miss Y’s needs in the period the lift was due to be repaired, it said the family should have discussed this with the county council or made their own arrangements. This is not in line with the guidance and is fault.
57. The Council is a relevant partner for the purposes of the Care Act and the Disabled Facilities Grant guidance highlights the importance of a seamless, coordinated service. The Council should either have advised Mr X to seek support from the county council or liaised with the county council itself, given one its residents had a need for care and support, as did her carers. It did neither, and this is fault.
58. In my view, if the Council had acted to seek or provide interim support, Miss Y, and Mr and Mrs X would also not have experienced the disruption, inconvenience and stress nor incurred the cost of having to find alternative accommodation in the period which followed.
59. The Council is correct to say any contract for works carried out under a Disabled Facilities Grant are between the householder and the contractor. However, I have not seen evidence this was explained to Mr X at any point before the grant was approved. Given the vulnerability of Miss Y and Mr and Mrs X as her carers, the Council should have taken steps to support Mr X to understand the responsibilities of all parties involved in the Disabled Facilities Grant. It did not do so, and this was fault.
60. In response to my investigation, the Council said since 2018 it has been working in partnership with the county council and other district and borough councils to deliver a countywide service to DFG applicants.

Respect for family and private life

61. The Council failed to have regard for the family’s Article 8 rights when it did not offer interim help, particularly in relation to Miss Y’s physical integrity and self-determination. Miss Y was unable to access her adapted facilities and became more reliant on her parents, and the Council should have considered what support was necessary to alleviate this.

Mr X’s claims and complaints

62. The Council was not at fault for referring Mr X’s initial complaint to its insurers, given he wished to claim costs from the Council. I have not seen any evidence the Council provided inaccurate information to its insurer. However, the insurer’s response appears to have confused matters, by suggesting the Council was exploring entering a contract with Company A.
63. In response to my enquiries, the Council said it would not have been appropriate for officers to meet with Mr X while the insurance claim was under investigation. This is a view the Council was entitled to hold. However, the insurance claim process concluded in November 2019 and despite Mr X expressing his dissatisfaction with the outcome, the Council did not offer to meet with him until June 2020. The Council could have offered the meeting sooner, before the impact of the COVID-19 pandemic prevented Mr X from attending.
64. Mr X raised several specific questions about the Council’s handling of his case within his complaint correspondence. Despite a senior officer saying they had read his correspondence and reviewed the files about the Disabled Facilities Grant, the final response from the Council failed to address the majority of his concerns. This was fault and caused frustration for Mr X as he felt his complaint had not been properly considered or taken seriously.

Agreed action

65. I have considered the Ombudsman’s Guidance on Remedies. We aim to put the person who has suffered an injustice back in the position they would have been in, but for the fault. Where that is not possible, we suggest a financial sum instead to recognise the injustice. This is not compensation. Compensation is a matter for a court and the sums awarded are on a different basis.
66. Within one month of this decision, to remedy the injustice caused, the Council will:
• apologise to Miss Y and Mr and Mrs X for the injustice caused by the faults identified in this investigation.
• on the production of evidence by Mr X, reimburse the costs incurred for accommodation between 19 March and 31 March 2017 including hotel costs and mileage between Mr X’s home and the accommodation.
• on the production of evidence by Mr X, reimburse the travel and equipment hire costs incurred when the family went to stay with a relative while they waited for the lift to be replaced.
• pay Miss Y £500 to recognise the inconvenience and frustration caused by the Council’s lack of interim support once the lift broke down.
• pay £500 each to Mr and Mrs X to recognise the physical and emotional distress caused to them by the Council’s faults and the time and trouble taken in pursuing their complaint.
• consider Mr X’s request to meet with officers to discuss his family’s experience.
67. In order to prevent similar faults occurring in the future, the Council will complete the following within one month of this decision:
• Ensure information is shared with DFG applicants in writing at the start of the process about the responsibilities of the Council, the county council, the contractor and the applicant.
• Remind officers of the circumstances in which they should be liaising with the county council during the DFG process, including when interim help is required while grant work is ongoing.
• Remind officers of the Council’s duties under the Human Rights Act 1998 and to be mindful of them during the DFG process.
• Remind officers investigating complaints of the Ombudsman’s ‘Guidance on Effective Complaint Handling for Local Authorities’ which gives advice on what to include in decision letters.
68. The Council will provide evidence to the Ombudsman of its compliance with these recommendations in the timescales set.

Back to top

Final decision

69. I have completed my investigation with a finding of fault for the reasons explained in this statement. Mr X, his wife and his daughter were caused an injustice by the actions of the Council and it has agreed to take account to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman