Summary: the complainant says the Council failed to explain and consider the criteria for waiving repayment of part of a Disabled Facilities Grant. The Council says it acted in line with its legal right to reclaim any grant where the property is sold within ten years of the grant. We found the Council acted with fault in not outlining its discretionary powers or inviting information on which it could decide if it should exercise its discretion. The Council agreed to review the decision.

The complaint

1. The complainant, whom I refer to as Mrs X complained on behalf of her mother Mrs Y. Mrs X says the Council failed to properly consider its discretionary powers when it decided to reclaim the full amount of the Disabled Facilities Grant (above £5,000) on the sale of Mrs Y’s home. Mrs X says paying this caused Mrs Y avoidable distress, and financial hardship. Mrs X wants the Council to reconsider its decision and refund the payment.

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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. If 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

4. In considering this complaint I have:
• Contacted Mrs X and read the information presented with the complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law, guidance, practice, and policy.
5. I shared with Mrs X and the Council my draft decision statement and reflected on their comments before reaching this my final decision.

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What I found

6. When a council awards a Disabled Facilities Grant (DFG) it enters an agreement with the applicant. This says the Council will expect the applicant to repay the grant (over £5,000 and up to £10,000) if the applicant sells the property within ten years of the work’s completion. The Council has a discretionary power to waive its right to repayment or to ask for a lesser repayment if the applicant sells the property within ten years.
7. In deciding whether to demand repayment the Council must consider each case on its merits and decide whether:
• Repayment will cause financial hardship;
• The sale of the property is to allow the applicant to move for work;
• The sale is connected to the physical or mental health or wellbeing of the applicant and;
• The sale will allow the applicant to live with someone needing care or to be cared for.

What happened

8. In 2011 Mrs Y successfully applied for a DFG for Mr Y’s benefit. The Council paid the grant in October 2011. The grant had conditions attached to which Mrs Y agreed. The conditions stated if they sold the house within ten years of the grant, they must repay the grant received over £5,000. The Council placed a local land charge on the house to protect its right to the repayment.
9. Sadly, Mr Y passed away in 2013.
10. In 2020 Mrs Y now aged 82, successfully put her home on the market. Mrs Y intended to move from the area to a property more suitable for her physical and health needs. During the sale Mrs Y’s purchasers raised with her the local land charge showing that some part of the DFG may be repayable. Mrs X contacted the Council and asked what the charge related to and how much they would have to pay. The Council responded by explaining the local land charge concerned the DFG and that Mrs Y must pay £8,115.00 to discharge it.
11. Mrs X asked the Council if it would consider waiving the repayment because the charge would expire in September 2021, i.e., only nine months away. The Council refused saying the repayment helped pay for DFGs for other residents. The Council did not explain the grounds on which the Council may exercise its discretion to reduce or waive the charge. There is no evidence the Council set out for Mrs X any policy it had on the criteria used to consider exercising that discretion.
12. Mrs X repaid the grant so the family could complete the sale of the home and Mrs Y could move into more suitable accommodation to meet her current needs.
13. Following Mrs X’s repayment of the grant Mrs X complained to the Council. It considered her complaint. In March 2021 the Council completed its investigation. It wrote to Mrs Y saying the Council’s officers had explained the conditions of the grant in 2011. The Council confirmed it had no duty to waive the repayment and that it had considered Mrs Y’s circumstances when deciding to recover the grant.

Analysis- was there fault leading to an injustice?

14. My role is to decide whether the Council properly considered its discretionary power to waive any repayment and gathered enough information on which to base that decision. If I find it acted with fault, I must decide what impact that had on Mrs X and Mrs Y and say what the Council should do to remedy that.
15. The Council correctly says it had the right to register the local land charge as part of the DFG agreement. It correctly says it had a right to reclaim part of the DFG if Mrs X sold the house within ten years of October 2011.
16. The Council cannot expect Mrs X or Mrs Y to know about its discretionary power to waive repayment of the grant.
17. However, Mrs X told the Council that Mrs Y intended to move to a property more suitable to her current needs. In responding to that enquiry, the Council did not tell Mrs X of its discretionary power. Also, the Council did not provide details of the procedure to follow if the applicant wished to apply for a discretionary waiver of the repayment or invite her to apply. I find these failings as fault.
18. The Council did not ask for information on which to decide if Mrs Y’s move arose from a need to address her physical or mental health or wellbeing. Therefore, the Council could not properly consider whether it could exercise its discretionary power.
19. In its investigation the Council similarly did not consider whether it had properly explained to Mrs X the criteria Mrs Y would need to meet before it could use that discretionary power. I find this missed opportunity to address the matter as fault.
20. We cannot say whether had the Council considered if it should waive the charge on wellbeing grounds it would have decided in Mrs Y’s favour. However, it should have properly considered the matter, and this has left Mrs Y wondering if she needed to make the repayment which has caused a financial penalty for her.
21. The Council on properly gathering information from Mrs X and Mrs Y could consider if it should have waived the repayment and if it decided it should, it may offer a refund. Therefore, I recommend the Council reviews its decision.
22. In considering how the Council should address the injustice I have considered our “Guidance on Remedies” and set a symbolic payment for the avoidable distress caused.

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Agreed action

23. I recommended and the Council agrees to within one month of this decision:
• Apologise to Mrs X and Mrs Y;
• Pay Mrs X £150 in recognition of the avoidable distress caused by the failure to properly advise Mrs X of the grounds for a waiver;
• Invite Mrs X to provide information to show whether Mrs Y meets the criteria for exercising the Council’s discretion and to give her a decision within one month of receipt of that information;
• Share with staff my final decision to highlight the need to tell people about the criteria on which the Council may exercise its discretion.

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Final decision

24. In completing my investigation, I find the Council at fault causing an injustice for which a proportionate remedy has been agreed.

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Investigator's decision on behalf of the Ombudsman