Summary: Mr X complained about the Council’s decision to request repayment of a Disabled Facilities Grant paid to his late mother Mrs F after Mr X sold the property following her death. The Council was not at fault. It considered relevant law, guidance and the circumstances at the time when it decided it was appropriate to demand part repayment of the grant. The Council was at fault for the delays and failures in responding to Mr X’s concerns. It agreed to apologise and pay him £100 for the frustration and time and trouble that caused him.

The complaint

1. Mr X complained the Council requested part repayment of a Disabled Facilities Grant (DFG) it paid to his late mother, Mrs F, following the sale of her property in 2020. Mr X said the Council’s request was unfair as Mrs F had no choice but to sell her property to fund her care after she was required to move into a nursing home. Mr X says the Council should waive the repayment.
2. Mr X said the matter has caused him time and trouble and a financial loss to Mrs F’s estate.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

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How I considered this complaint

6. I spoke to Mr X about his complaint and considered information he provided.
7. I considered the Council’s response to my enquiry letter.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Disabled Facilities Grants

9. Disabled Facilities Grants (DFG) are for people with a qualifying disability who need adaptations to their home to help them remain in their home. Examples of work a DFG can fund include adapting a kitchen or bathroom, installing ramps or a stairlift.
10. The Housing Grants, Construction and Regeneration Act 1996 provides the legislation for DFGs.
11. The law says that where the DFG exceeds £5,000 the council may impose conditions which allows it to demand repayment or part repayment of the grant if the property is sold or disposed of within 10 years of the work being carried out. This is usually by way of a land charge against the property. The law says councils may only demand repayment of part of the DFG that exceeds £5,000 but may not demand an amount in excess of £10,000.
12. The law also says however that before demanding repayment of a DFG the council must consider whether certain exceptions apply and having done that, whether it is reasonable in all circumstances to require repayment. The exceptions relevant to this case are:
• Whether the recipient of the DFG would suffer financial hardship should they be required to repay all or any of it.
• Whether the disposal of the property is made for reasons connected with the physical or mental health or well being of the recipient of the DFG.

The Council’s policy

13. The Council’s policy states it will apply a local land charge against properties where it has funded work though a DFG in excess of £5,000. Its policy states this allows it to demand repayment of such part of the DFG that exceeds £5,000in the event the property is sold or disposed of within 10 years.

What happened

14. In 2016 the Council awarded Mrs F a DFG for £7394.82 to adapt an existing ground floor toilet. Records show Mrs F signed a DFG agreement with the Council in 2015. The agreement stated the Council would place a charge on the property where the DFG exceeded £5,000. It said the Council would only recover the charge if the property was disposed of within 10 years.
15. In 2019 Mrs F’s health deteriorated and she spent some time in hospital before moving to a nursing home in January 2020. Mrs F stayed at the nursing home on a permanent basis, unable to care for herself at home. Following Mrs F’s permanent move to the nursing home Mr X put her house up for sale towards the end of 2019. In March 2020 Mrs F died.
16. In July 2020 a solicitor dealing with the sale of Mrs F’s house contacted the Council questioning the DFG land charge and asking what the redemption fee was. Up to this point the Council said it was not aware Mrs F had died.
17. The Council wrote to the solicitor and advised a DFG repayment amount of £1454,00 was due. The Council said it had waived agent fees of £930,82. The Council said it would remove the DFG land charge upon receipt of payment.
18. Mr X wrote to the Council. He explained that Mrs F left her house in September 2019 and did not return after moving to a nursing home in January 2020. Mr X said he had put Mrs F’s house on the market to cover the costs of her care fees. He explained there were delays selling the house due to a buyer having a mortgage. He said the solicitor dealing with the current sale discovered the DFG land charge. Mr X asked the Council to reconsider whether in the circumstances, repayment of the DFG was appropriate.
19. Internal emails show the Council considered Mr X’s request and the legislation around DFG repayment. The emails show it decided that as Mrs F had already passed away then the exceptions (outlined in paragraph 12) did not apply as they would have done if she was still alive. It considered that as Mrs F had died then she could not suffer financial hardship and any issues around her physical or mental health no longer applied. It decided therefore that Mrs F’s estate should repay the DFG. The Council said it informed Mr X of its decision over the telephone.
20. Mr X appealed the Council’s decision. The Council drafted a letter to Mr X in August 2020 stating it was satisfied the repayment obligation remained. It told us however the letter was not sent at the time due to an email administration error.
21. In late August 2020 Mr X wrote to the Council again. He said the Council’s lack of response meant he had no choice but to pay the DFG to avoid the sale of Mrs F’s housing falling through. He asked the Council to remove the land charge. He further asked the Council to explain its decision making stating he had not received a response to the appeal letter he wrote in July 2020.
22. Mr X did not receive a response, so he chased the Council again in September 2020. The Council sent Mr X the letter it had intended to send in August 2020.
23. Mr X remained unhappy and complained to us in late 2020. Mr X said the Council had failed to adequately explain its decision making and he was unhappy at the lack of empathy it had shown in the circumstances.
24. We asked the Council to respond to Mr X under its corporate complaint’s procedure which it did in January 2021. The Council’s response did not uphold Mr X’s complaint and said it would not refund the DFG payment.

My Findings

25. The Ombudsman is not an appeal body. We cannot substitute our opinion for that of the Council and we cannot criticise a council’s decision unless there was fault in the way it made its decision.
26. Mr X placed Mrs F’s house on the market when she went into hospital and then moved into the care home at the end of 2019. The records show it is likely the Council would have waived repayment of the DFG had it been aware of Mrs F’s circumstances at the time. However, it is not Council fault that it only became aware of the circumstances after Mrs F had died.
27. The law says the Council must consider whether any of the exceptions, as outlined in paragraph 12, apply before demanding repayment. Records show it appropriately considered the circumstances at the time and decided the exceptions did not apply because Mrs F had died. It was satisfied that the requirement for repayment was reasonable and it decided not to use its discretion to waive the repayment request. The Council considered the law, its own policy and Mr X’s circumstances when it made its decision and therefore was not at fault.
28. The Council’s handling of Mr X’s appeal and subsequent correspondence was poor. Mr X was clearly unhappy with the Council’s handling of the matter and he asked it to explain its decision making which it failed to do. The Council failed to send a letter it had prepared in response to Mr X’s appeal and Mr X had to chase the Council for a response on two further occasions before it sent him the letter. It meant Mr X brought the matter to us without an adequate response from the Council. This caused Mr X frustration and time and trouble.

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Agreed action

29. Within one month of the final decision the Council agreed to apologise to Mr X and pay him £100 to recognise the frustration and time and trouble caused by its failure to respond to Mr X’s correspondence.

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Final Decision

30. I completed my investigation. There was fault by the Council causing injustice for which I have recommended a remedy.

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Investigator's decision on behalf of the Ombudsman