Summary: Mr and Mrs X complained the Council failed to properly administer a Disabled Facilities Grant application. We found there was fault that warranted a remedy.

The complaint

1. Mr and Mrs X complain that East Hampshire District Council (“the Council”) failed to properly administer an application for a disabled facilities grant (DFG) for a property they were converting.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to the complainants and made enquiries of the Council.
5. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

The Housing Grants, Construction and Regeneration Act 1996

6. Section 1 of the Act states “Grants are available from local housing authorities in accordance with this chapter towards the cost of works required for the provision of facilities for disabled persons (i) in dwellings, qualifying houseboats and caravans, and (ii) in the common parts of buildings containing …flats.”
7. Section 23 of the Act describes the purposes for which a grant may be given.
8. Section 24 of the Act states that a grant should not be approved unless the authority is satisfied that the works are “necessary and appropriate to meet the needs of the disabled occupant, and that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling...”.
9. Section 29 of the Act states that a local authority shall not approve an application for a grant if the relevant works have been begun before the application has been approved. But, where the works have begun but have not been completed, the authority may approve the application for a grant if they are satisfied there were good reasons for beginning the works before the application was approved.

The Council’s approach to DFGs

10. The Council told us it received most of its DFG applications as referrals from Occupational Therapists at Hampshire County Council. In straightforward cases, one of its officers would visit the property to be adapted to assess how the adaptations would be achieved and produce a Schedule of Works (SOW). The SOW would be checked with the OT to confirm it would meet the applicant’s needs. The SOW would then be sent to the applicant (or their representative) with the relevant application forms.
11. When the DFG application forms are returned, the Council would obtain tenders for the work (in some cases the applicant may arrange this). Once competitive estimates are received the grant application will be processed and a grant approval document will be issued. The grant would usually be paid direct to the contractor once the works are completed.
12. The Council uses a private company as a partner to assist it to deal with DFG applications. I have referred to this company as Company A in this statement.
13. Section 13 of the grant application form asks if the works subject to a grant application have already begun or been completed. It notes that a grant will not normally be paid for works that have already begun and cannot be paid for work that has already been completed.

What happened

2017/2018

14. Mr and Mrs X provided us with correspondence showing that they had contact with an Occupational Therapist (OT) from the County Council in late 2017 about making a DFG application. The County Council OT made a DFG referral to the Council in January 2018.
15. Mr and Mrs X were building a new property. They wanted to obtain a DFG for the disabled facilities that were part of the build. These included a ramp at the front, a level access shower, a changing bench and two ceiling hoists.
16. The Council’s records show that a housing officer closed the application down at the end of March 2018 because the property was not yet built. He told Mr and Mrs X a grant could only be provided if the property was ‘deemed fit’. As it was not built this could not be assessed.
17. The County Council OT contacted the Council again on 20 June 2018 stating the build was now progressing well and Mr and Mrs X wanted to restart the DFG process. The OT sent a fresh referral the same day. No recommendations were included to show what, specifically, was required.
18. The Council passed the application to the company it partnered with (Company A). This was because it was a complex case. Their records show a referral being received on 6 July 2018.
19. Company A states it asked the OT for their recommendations several times in July 2018 without reply. This caused some initial delay, not of Company A’s making.
20. Following contact with Mrs X, the company noted Mr and Mrs X expected to move into the house in November. Company A noted Mrs X would contact them when the partition walls were built, and the application would be placed on hold until then.
21. A site visit took place in early August 2018 following contact from Mr X. Their son’s requirements were discussed in a telephone call with Mrs X at the end of September 2018. Company A noted at this point they needed more information from Mr and Mrs X or those dealing with their build.
22. The Council told us there was a joint site visit in January 2019 which included the Council and Company A. This wasn’t recorded in Company A’s records.
23. In January 2019 the Council emailed the person who held Power of Attorney (POA) for Mr and Mrs X’s son. The POA was asked to sign the Disabled Facilities Grant forms. Company A were copied into the email.
24. Mr and Mrs X’s son’s POA signed and returned application forms on 1 May 2019. These stated the works were: a height adjustable shower bench, hoisting for three rooms and a height adjustable sink. The form stated the works had not yet begun.
25. Company A’s records indicate, on 3 May and 31 May 2019 an officer chased the progress of the build. They noted at the end of July that an officer would chase again in early August. The records indicate that build progress was being chased but there is no record of how the grant application itself was being acted upon by Company A. There is no record that the applicants were being advised what they needed to do to complete the grant application process. The Council says it understood Company A told the applicant the DFG forms were not complete. However, there is no evidence of this on Company A's records.
26. On 27 August 2019 Company A spoke to the applicant and noted the house was “nearly complete”. A file note by Company A stated quotes and paperwork were being prepared to send for approval in the week commencing 2 September.
27. On 29 August 2019 Company A responded to an email from Mr X. An officer stated they were pleased the house was nearing completion. He asked if he could meet Mr X at the property to fill out come forms for the DFG. He stated “I appreciate you may have done this already, but unfortunately the forms can not be more than 6 months old…” No mention was made of the possible problem with funding a grant where works had already been begun.
28. A site visit took place on 5 September. At that time an officer noted that work in the bathroom had begun.
29. On 13 September Company A sent an email to the applicant. They stated they had hoped to get DFG application forms signed at the visit last week, but Mr X had advised that their son had a POA who would need to sign the DFG forms. They asked for the POA’s contact details. They also explained at this point that grants could not paid retrospectively, so it was imperative the grant forms were in for approval soon, given the shower room was progressing rapidly.
30. Mr X replied stating “Following two meetings, it was agreed that a retrospective payment would be more suitable in this case as it would prevent your contractors redoing the work that has just been completed, thus saving money and time. The site manager has been in regular contact with equipment suppliers to dovetail the work, and to ensure things like doors are correctly sized etc. The…officer accepted this, stating if that had been agreed by others, that was okay”.
31. The officer from Company A responded stating “Ah, okay…If this has all been discussed and pre-planned then just ignore me.” There is no record of the meetings to verify what was said.
32. On 13 September, Company A sent forms to Mr and Mrs X’s son’s POA. He replied to state he had already sent forms to the Council in May 2019.
33. Also on 13 September the County Council OT told Company A that the ceiling track and hoist would not be covered by the DFG because Mr and Mrs X had used a supplier that was not covered or supported by the County Council. The OT stated she had made this known at the outset.
34. On 18 September, Company A told the POA they had checked the file and found the application form. They stated the POA only needed to complete an ownership certificate. She stated a SOW would then be sent out for agreement. She stated she knew they had their own schedule but this would be needed for the grant. The POA returned the ownership certificate the same day, 18 September.
35. The Council advised us that neither the Council, nor Company A received a completed application form to process. But, Company A’s records for 20 September stated “All application forms are in. SOW to be revised today and [an officer] to send to POA for approval and then out to tender.”
36. On 26 September, Company A spoke with the Council. The Council advised the company to call Mr and Mrs X and see where they were with the work.
37. Company A records show, on 26 September, an officer noted the works included a ramp and a level access shower and said she was going to figure out if any of this had been done, if not she would get them to hold off so it could be done under the DFG. Later that day emails between Company A officers noted Mr and Mrs X were fitting the last element that day, a changing table.
38. In early October Company A was obtaining quotes for works such as the changing table. A Schedule of Works (SOW) showed the total cost of works to be around £9000. The work to create a level access shower was included, along with the changing table which cost £4750 of the total. The SOW included numerous other points.
39. In October the Council advised Mr X that because the works had already been completed, it could not use a grant to pay for them retrospectively.
40. In November 2019 in correspondence with Mr X, the County Council OT stated she had spoken to Company A and “I think essentially what has happened is either miss communication or a breakdown in communication with regards to the DFG and when it can be funded…” She stated “although it was okay to start the initial shell of the build, EHDC and [Company A] should have been informed as to when disabled adaptations were about to go in. So, the CT Hoists, level access shower, changing bench and ramping”.

Mr X’s complaint

41. In April 2020 Mr and Mrs X complained. In May the Council responded. It stated
42. “I am sad to say that this case certainly could have been handled better, and for this I apologise.  We do rely on our Home Improvement Agency partner to be able to successfully supervise and guide cases to completion, and it would appear in this case that may not have happened. I can confirm we have already raised your particular case with Company A and we will do so again, however I am afraid there is little we can do in terms of the DFG itself as the work has now been completed.  If you have not already done so you may wish to raise a formal complaint with Company A themselves…”
43. In June in its final response, the Council stated “the [Council’s] expectation is that [Company A] will manage a DFG case without the need for the Council to intervene. It is with regret however, it appears that in relation to this particular DFG case the outcome fell short of the Council's expectations. Whilst I can only offer my apologies for this, and as advised by my colleague…., if you have not already done so, I would strongly urge you to contact [Company A] and raise a formal complaint with them direct.”
44. Company A responded to a complaint from Mr X in October. They referred Mr and Mrs X to the note on the application form which stated work that had been done could not be paid for by a DFG. They stated from reviewing communications with them they understand Mr and Mrs X believed work could be paid for retrospectively. They stated this was not the case and referred to the email sent on 13 September. They stated they could not comment on where the works were at that time or if the works could have been included in a grant.
45. Mr X was dissatisfied, and Company A agreed to look again at its files and respond further. Although Company A provided some updates, it took it until 25 January 2021 to send its final comments on his complaint. Company A explained some of the reason for the delayed response was increased difficulty due to the COVID-19 pandemic and annual leave by some of the relevant officers. However, the response took too long and it seems to me that at least some of this delay was avoidable.
46. When the Company did respond, it stated it had checked what information it held but could add nothing further to the position it set out on 27 October 2020. It stated it could not progress the issue any further without specific information from Mr X about dates and times of meetings that were held or any documentation supporting his complaint.
47. Mr X considered the response inadequate. He contended that he made an application before the work started and the Company had not responded properly.

Was there fault by the Council or Company A acting on its behalf

48. When the application was first submitted, Mr and Mrs X’s property was not yet built. The relevant legislation does not refer to “adaptations” to existing buildings, but the provision of facilities for disabled people. So there does not seem to me a pre-requisite for a building to “exist” before a DFG can be approved. It may be possible, in principle, to discuss what elements of a new building could be covered by a DFG ‘off plan’.
49. The Council stated the reason the application was declined was because the dwelling concerned was not essentially fit for occupation. However, the Council agreed to consider the application when the shell was erected. It does not seem to me the shell of a building would be essentially suitable for occupation either. So, it is not clear to me how the Council reached its view that the DFG could not be considered in principle at the outset.
50. Having said that, I do not consider this decision caused significant injustice to Mr and Mrs X, because the Council advised them to reapply, and the application could still be considered. They did reapply, so the issues mainly stem from how the fresh referral was then handled.
51. In response to our enquiries, Company A stated that construction work progressed relentlessly without information being passed back to its officers. They stated the applicant had also commented it was hard to break down the costs of what the adaptation work would cost prior to installation but it could be guessed at. They suggested that even if officers been more forthright, and made this clearer they consider construction would have continued regardless.
52. When a new referral was received in late June, no recommendations were sent with it. This caused some delay. This does not appear to have been the fault of the Council/Company A. However, there were failings and poor communication and this caused delay and confusion. It is also not clear to me what process was being followed by Company A in Mr and Mrs X’s case.
53. I can see that Company A was chasing for information in late 2018, and chasing for details of build progress in 2019, but none of the file notes or emails provided by Company A make observations that the applicant’s actions or the relentless pace of the build were a problem or that the applicant was told this would mean the grant was in jeopardy. The company’s records do not provide any evidence that Company A had been clear with the applicants about what they needed to do to complete the DFG application process.
54. Mr and Mrs X’s son had a POA and they submitted DFG forms in May 2019. It seems no ownership certificate was sent with the forms but this was not followed up then. In September 2019 Company A, seemingly unaware of these forms, asked Mr X to complete forms at a site visit, then sought contact details for the POA which the Council already had. Only then was the ownership certificate requested. In response to our enquiries Company A stated that only late in the day were they told a POA existed, but this was not the case. It is evident they were aware a POA existed from January 2019 when the Council copied Company A into an email and from when the POA sent the original forms in months earlier.
55. Officers visited site in August and September 2019, but it appears by this time the works were largely complete. So, it does not seem to me the Council, or Company A took sufficient action to oversee what was required for the application and to make this clear to the applicants, Mr and Mrs X/their son’s POA. There seems to me to have been a lack of ownership by Company A for managing the DFG application process.
56. The Council accepted that Company A had not successfully supervised the application in its response to Mr and Mrs X, but the Council did not take any responsibility for the issues it had with Company A’s actions while working on its behalf. It referred Mr and Mrs X to Company A, who did not accept responsibility. Rather, they stated in response that works could not be paid for retrospectively. Neither Company A or the Council have addressed how the issues the Council identified had affected Mr and Mrs X or remedied any injustice caused. Given the Council had already expressed its own concerns, this seems poor.
57. Company A only stated to the applicant on 13 September, that retrospective grants were not possible. When Mr X challenged this and stated this had been agreed, this was not followed up. This was a missed opportunity (albeit late on) to ensure any final elements of the build that could be part of a DFG were placed on hold. Most notably this affected the installation of the changing bench, which was not installed until 26 September.
58. There are also some contradictory comments made by either the Council or Company A which suggest confusion in what process was being followed and what was required.
59. At the outset officers noted a ramp and level access shower should not be included in a grant because the new construction could be done so as to include these features. But, this was not followed through. Several SOW’s completed later included the installation of the level access shower. Requirements were obtained for the ramp late in the process.
60. While I have noted there was fault in the way Company A managed the process, I accept that the application forms note that grants are not payable for works already carried out. So, there was also some onus on Mr and Mrs X/the POA to make themselves aware of the grant conditions. This does not take away from the lack of appropriate oversight by Company A, but I have taken this into account when considering the injustice caused and the remedy that is warranted.

Injustice

61. It is clear that DFGs cannot be paid after work has taken place. However, given the fault I have found with the way the application process was managed by Company A on behalf of the Council, I have considered if some of the work could have been included in a grant, had the process been set out more clearly and if confusion had been avoided.
62. Aside from the fault I have found with Company A, I accept that it was open to Mr and Mrs X to check how far the build could progress before completing elements of the build. Taking this into account, it is not clear on balance, that all of the work (for example, the ramp or shower) would have been included. So, it is not clear the whole grant would have been paid, had the fault not occurred.
63. However, Mr and Mrs X/their son’s POA had completed an application form which does not appear to have been properly responded to. It seems to me that Company A had not properly explained what Mr and Mrs X needed to do to ensure their grant was paid and did not make clear the actions required. I consider had the fault had not occurred and had Company A clarified the situation on or around 13 September, it is likely the changing bench work could and would have been included in the grant. This was installed on 26 September.
64. So, on balance, I consider an appropriate remedy to the complaint is for the Council to pay an amount equivalent to the cost of the changing bench to Mr and Mrs X’s son, via his POA. The amount should be £4750.
65. To recognise that the response to Mr and Mrs X’s complaint was poor, and that there was delay in explaining the final outcome, I consider the Council should pay them £250 to recognise the additional time and trouble they spent raising the complaint and bringing it to the Ombudsman. I have also recommended a review of process.

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Agreed action

66. Within four weeks:
67. To recognise the issues with the way their complaint was handled by Company A and the Council and the time and trouble this caused Mr and Mrs X in raising their complaint, I recommend the Council pays them £250.
68. To recognise that, on balance, some of the works could have been subject to a successful disabled facilities grant had the fault not occurred, I recommend the Council pays Mr and Mrs X’s son, via his POA, an amount of £4750. This is based on the cost of the changing bench.
69. The Council should also review how it considers and processes applications for Disabled Facilities Grants for new build properties and it should draw up guidance for officers to follow.

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Final decision

70. There was fault by the Council. The Council agreed to remedy the complaint as we recommended so I have completed the investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman