Decision : Upheld
Decision date : 07 Jun 2021
The Ombudsman's final decision:
Summary: Mr X complained about the Council’s decision to refuse his request for a disability adaptation to his rented property. We have found that Mr X was given inaccurate information about his landlord’s position causing confusion and frustration. To remedy the injustice caused by this fault, the Council has agreed to apologise in writing to Mr X. We have found no fault with the Council’s occupational therapy assessment.
- The complainant, who I refer to here as Mr X, says that the Council has unreasonably refused his request to use a Disabled Facilities Grant (DFG) to install a bath at his property, instead of a shower. In particular, he complains about:
- the assessment process; and
- providing inaccurate information from his landlord.
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)
- We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended) The Housing Ombudsman deals with complaints abouts councils as registered social landlords.
- 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 spoke with the complainant and reviewed the information provided.
- I made enquiries with the Council and reviewed the relevant law.
- Mr X and the Council had an opportunity to comment on my draft decision. Their comments were considered before I made my final decision.
What I found
Relevant law and policy
- Disabled Facilities Grants (“DFGs”) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to provide grant aid to disabled people for certain adaptations. Before approving a grant, a council must be satisfied the work is necessary and suitable to meet the disabled person’s needs and is also reasonable and practicable.
- The 1996 Act sets out several purposes for which grant funding is available. The purpose relevant to this complaint is, “to facilitate access by the disabled occupant to, or providing for the disabled occupant a room in which there is a bath or shower (or both) or facilitating the use by the disabled occupant of such a facility”.
The Council’s policy
- This states the Council must check if the proposed scheme is necessary and appropriate to meet the needs identified by the occupational therapist (OT). It must also be reasonable and practical depending on the age and layout of the property.
- Mr X suffers from multiple disabilities. He uses a wheelchair and suffers with chronic pain. In December 2020, Mr X and his wife moved to live in a specially adapted property owned by a local housing association (the Housing Association). This property has a level access shower room but no bath.
- In June 2020 he asked the Council to support a DFG application to fund installation of a bath. He told the Council this would be helpful to him with his disabilities and pain relief. He also said he benefitted greatly from a bath in his previous property that he accessed using a bath chair.
- The following month, an OT carried out an assessment at Mr X’s home. She told Mr X that it would be unlikely she would recommend a bath because the property was already adapted for a disabled person. But she agreed to contact the Housing Association to find out if it was possible. She also discussed hydro/physiotherapy as possible options to tackle Mr X’s pain.
- In response to her enquiries, the Housing Association said its policy was not to allow any alterations to bathroom fixtures and fittings.
- The OT updated Mr X and offered him a shower seat instead. He was also offered a carer to support him with washing.
- Mr X was distressed by this suggestion. He says he had already explained quite clearly that he was unable to stand and so a shower seat was not a suitable alternative to a bath. This meant he was unable to wash for many weeks at a time.
- In August 2020, Mr X made a formal complaint to the Council.
- A senior officer (Officer B) was allocated to consider this complaint. Officer B offered to meet with Mr X to discuss his concerns. This home visit took place shortly afterward, attended by Officer B and the OT who carried out the first assessment. During this visit they observed Mr X’s overall mobility and transfers between his bed and his wheelchair.
- After this visit, Mr X was told:
- the Housing Association had not given permission for any bathroom adaptations; and
- a bath would be unsafe and so would not be recommended.
- In its complaint response, the Council said it had obtained a “second opinion” and this confirmed that a bath would be unsafe, taking into account the observations of Mr X’s mobility. The response also confirmed the Housing Association would not agree to the adaptation.
- Mr X disagreed with this outcome and brought his complaint to the Ombudsman for the following reasons:
- The Council should not have based its safety decision on its observations of him moving between his bed and wheelchair. It was not a realistic comparison.
- The Council should have taken into consideration that he safely accessed his bath in his previous property without incident.
- His doctor supported a bath installation because it would assist with pain relief.
- He remained unable to access the shower because he cannot stand for long enough.
- The Council gave incorrect information about the position of the Housing Association. He had been told by the Housing Association that it was possible if it was for medical reasons. This had not been mentioned by the Council.
- Since he made his complaint to the Council, Mr has continued to contact the Council about the bath installation. In November 2020, The Council asked the Housing Association to clarify its position.
- In response, the Housing Association said, “customers would not be granted planning permission to change the bathroom themselves. The only way this would be considered is through DFG. Is there a strong medical reason why a bath is required over a wet room? This reason would be reviewed when approving or refusing a DFG”.
- The Council has taken no further action about this during the Ombudsman’s involvement.
- Mr X wants the Council to support his request for a bath installation. Two reasons were given by the Council for refusing his request:
- It was not safe, following assessment by three OT’s.
- The Housing Association did not given permission for the adaptation.
The OT assessments
- Two OT assessments both concluded that Mr X could not safely access a bath. The Council was incorrect when it said three OT’s had assessed the proposal. The same OT attended both appointments. While the statement was not accurate, I am satisfied there was a “second opinion” involved in the process (Officer B) and so I cannot say any fault arose as a result of this error.
- While Mr X may disagree with the outcome of these assessments, the records show they were informed by OT’s observing Mr X’s general mobility and the way he transferred from his wheelchair to the bed. I appreciate Mr X says they should not have relied on observations in the bedroom, but the Council has explained, in the absence of a bath being in situ, this was a suitable alternative to inform its decision. Similarly, I accept that just because Mr X accessed a bath previously, this in itself would not allow the OT’s to change their opinion based on what they had personally witnessed. I am also satisfied the Council tried to work with Mr X to identify a suitable alternative to a bath.
- For these reasons I do not find fault with the Council’s assessment. The Ombudsman can only do so if there was fault in the way the Council reached its decision. It decided it was unsafe for a bath to be installed and this is not a decision the Ombudsman can interfere with.
The Housing Association
- The Council’s records show the Council did not accurately reflect the position of the Housing Association to Mr X. In its response to the Ombudsman about this, the Council relied on an email in which the Housing Association said its policy was not to allow alterations to bathrooms.
- But there was a later email from November 2020 in which the Housing Association said bathroom adaptations could be allowed if funded through a DFG. It also asked the Council if there was a strong medical reason why a bath was required over a wet room.
- While this email came after the Council’s final complaint response to Mr X, it should have been acted upon. Mr X was clearly frustrated by the Council’s refusal to accept what he had been told by his landlord. There is no record of a response from the Council to this email or any further discussion with Mr X about possible medical reasons for a bath. Nor was it referred to in the Council’s response to the Ombudsman’s enquiries on this specific point.
- During the course of its discussions with Mr X, the Council often referred to the view of the Housing Association. Had safety been the only concern, this would not have mattered. I am therefore satisfied it was a relevant consideration and failure to respond to this later email was fault.
- This fault caused avoidable distress and frustration to Mr X that requires a remedy, set out below.
- The Council has confirmed that concerns about safety would override any medical benefits a bath may provide. It has also made several offers of support around washing that have been rejected by Mr X. I accept the overall outcome would not have been different had the Council responded to the matters raised in the Housing Association’s email and so I do not make any further recommendations about this.
- Within four weeks for the date of my final decision, the Council has agreed to take the following action:
- Apologise in writing to Mr X.
Investigator's decision on behalf of the Ombudsman