Summary: Mrs B says the Council delayed considering her application for a disabled facilities grant, failed to communicate properly with her about the application, ignored recommendations from the occupational therapist, suggested an alternative which would create secondary hazards and offered a cash alternative without providing details. The Council delayed telling Mrs B about its decision in relation to part of the grant application. There is no fault by the Council in the other issues raised. An apology and reminder to officers is satisfactory remedy for the area where the Council was at fault.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained about the way the Council considered a disabled facilities grant application. Mrs B says the Council:
• delayed considering the application;
• failed to communicate effectively with her about the application;
• ignored the occupational therapist’s recommendations;
• unreasonably suggested an alternative solution which would create secondary hazards; and
• offered a cash alternative without providing details or costings.
2. Mrs B says fault by the Council has caused her daughter to miss out on the adaptions she needs to the property and has caused her distress.

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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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mrs B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and 34(3))
4. 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

5. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

What should have happened

8. The Council’s private sector housing policy (the policy) says under part 1 of the Housing Grants, Construction and Regeneration Act 1996 the Council has a legal duty to provide specialist adaptations to meet the care and mobility needs of people with disabilities to enable them to live independently with privacy and dignity.
9. The policy sets out the eligibility for a Disabled Facilities Grant which includes making the dwelling or building safe for the disabled occupant and other persons residing with them.
10. Whilst the legislation requires a decision from the Council within 6 months of receiving the full application, the policy says the Council will aim to achieve this within 8 weeks.
11. The Housing Grants, Construction and Regeneration Act 1996 says a local housing authority shall not approve an application for a grant unless they are satisfied:
• (a)that the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and
• (b)that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling, qualifying houseboat or the building.

What happened

12. Mrs B’s daughter has a diagnosis of autistic spectrum disorder and sensory processing difficulties, along with other diagnoses. Mrs B contacted the Council in August 2019 and then arranged for an occupational therapist to assess her property. Mrs B telephoned the Council in January 2020 to advise of the occupational therapist recommendation for top opening replacement windows and a level access shower. The Council received a referral from the occupational therapist later that month. The occupational therapist recommended disabled facilities grant funded work which included level access shower facilities and works to remove a potential flight risk when windows in the house are left open for ventilation. The referral noted Mrs B’s daughter had learnt to override the window restrictors currently in place. The report from the occupational therapist recommended top opening windows but also said restrictors on the windows could be considered. The Council’s internal documentation indicates it did not consider the works to the windows qualified for a grant. However, the Council did not tell Mrs B that.
13. Mrs B became aware of the Council’s view on the windows when someone visited to discuss the works to the bathroom in February 2020. Mrs B contacted the Council. The Council explained it did not consider new windows necessary to prevent Mrs B’s daughter escaping. Mrs B provided the Council with more detail about why top opening windows were required and asked the Council for a copy of its complaints procedure. The Council provided Mrs B with a copy of its complaints procedure and Mrs B put in a complaint in April 2020.
14. The Council contacted the occupational therapy team for further advice. The occupational therapy team recommended the Council work with the family to try and establish what restrictors were previously used and to find suitable alternative ones. The Council agreed to do that.
15. The Council’s senior housing technician spoke to the occupational therapist about the options in May 2020. They then agreed to carry out a joint visit to Mrs B’s property which was delayed due to Covid 19 restrictions and the inability of the occupational therapist allocated to the case to carry out the visit. In the meantime the Council discussed with the occupational therapist the option of lockable window grills which would allow ventilation of the property and stop Mrs B’s daughter from licking the windows which would remove the entrapment hazard. The occupational therapist told the Council grills may be an alternative to consider.
16. The Council carried out a joint visit with the occupational therapist in July 2020. Following that visit the Council raised concerns with the occupational therapist about the ability of Mrs B’s daughter to still access top opening windows when unattended at night. The occupational therapist acknowledged that risk but considered top opening windows would go some way towards making the property safer provided window sensors were used to alert the parents if the child attempted to access the windows at night. The occupational therapist said window restrictors were not appropriate due to risks of entrapment and sharp edges within the frames.
17. The Council’s senior technical officer advised the occupational therapist of her view that an opening window was not required in the bathroom and reiterated her concerns about the safety of changing the window in Mrs B’s daughter’s bedroom. The officer suggested internal window bars and invited the occupational therapist’s view. In response, the occupational therapist raised concerns about Mrs B’s daughter climbing bars even if they were horizontal as well as concerns about Mrs B’s daughter pushing her arms and legs through the bars. The occupational therapist said she considered top opening windows the only means of reducing the current risk without adding additional hazards.
18. The Council contacted Mrs B and outlined the various options it was considering. The Council said it was not convinced top opening windows would be the safest option on the first floor given Mrs B’s daughter’s fascination for open windows and therefore the Council was considering fixed internal window bars. The Council asked for Mrs B’s view.
19. Mrs B raised concerns about the impact the bars would have and whether they were safe and suitable. Mrs B said she considered top opening windows would allow her daughter freedom to be in the room without her for a couple of minutes, combined with alarms to alert her if her daughter approached the windows. Mrs B subsequently provided a detailed assessment of the options the Council had suggested. Mrs B said top opening windows with restrictors on them as an additional level of security would be the most suitable option.
20. The Council consulted the fire service about window bars. The fire service confirmed a secondary means of escape was not necessary.
21. The Council completed a health and safety risk assessment at the end of July in relation to all the options it was considering, including replacement with top opening windows. The Council’s risk assessment concluded the secondary hazards created by top opening windows was greater than the secondary hazard from other options the Council was considering. The Council shared the outcome of its risk assessment with Mrs B and asked her to provide any further information she wanted the Council to consider. The Council then produced a final report. The Council recommended window restrictors on all windows in the property and bars for the two first floor bedroom windows, the living room and playroom windows on the ground floor.
22. Mrs B was not happy with that decision and asked the Council to escalate her complaint to stage two. The Council responded to that in September 2020. The Council reiterated its view that disabled facilities grant funding was intended in a case such as this to make the dwelling safe for the occupants and anyone living with them. The Council said it was satisfied Mrs B’s property was safe for her daughter if the windows remained closed. The Council therefore remained of the view that the need for new windows was primarily to provide ventilation to the property and this was not a matter that could be funded through the disabled facilities grant. The Council said it was satisfied it had assessed the occupational therapist’s recommendations against the legislation and the need to identify cost-effective works. The Council did not change its view on the works it would fund. The Council said though it would provide the same value funding towards Mrs B’s preferred option of replacement windows if that remained her decision.

Analysis

23. Mrs B says the Council delayed considering her application for a disabled facilities grant. The evidence I have seen satisfies me Mrs B applied for a disabled facilities grant in January 2020. Although the legislation requires the Council to provide decisions on disabled facilities grant applications within six months the Council has its own guidance which is to issue decisions within eight weeks. In terms of the application for replacement windows I have seen no evidence to suggest the Council sent Mrs B a formal decision in relation to that point within eight weeks. I am also concerned although the Council initially decided it would not fund replacement windows it did not explain that view to Mrs B or give her an opportunity to explain her reasoning for seeking top opening windows. Instead, it is clear Mrs B found out about the Council’s view in relation to the windows when an officer visited to talk to her about the arrangements for the other part of the grant application which was for works to the bathroom. Failure to tell Mrs B about the decision in relation to the windows or to give Mrs B an opportunity to discuss the reasons why she considered replacement windows were required initially is fault. That has clearly caused Mrs B frustration and led her to believe the Council has not properly considered the issue with the windows in her property. I am satisfied the Council has apologised to Mrs B for that failure. I consider that an appropriate outcome for this part of the complaint in terms of a personal remedy for Mrs B. However, I also recommended the Council remind officers dealing with disabled facilities grant applications of the need to issue a formal decision on an application, particularly where part of the works have been approved but part have not been approved. That will then enable applicants to follow the review process now set up by the Council. The Council has agreed to that recommendation.
24. I am satisfied once Mrs B began communicating with the Council to raise her concerns about the decision not to fund replacement windows the Council sought to engage with her. I am satisfied officers have had detailed email exchanges with Mrs B about the various options for her property. In addition, officers have contacted the occupational therapy service for its view and arranged a joint visit to the property. I appreciate this has taken some time. I am satisfied though this is because the Council has sought to work with Mrs B and the occupational therapy service to attempt to identify a suitable scheme which would attract grant funding. I therefore do not criticise the Council for any delays or for how it communicated with Mrs B after February 2020.
25. Mrs B says the Council ignored recommendations from professionals about what was required in terms of the windows in her property and failed to consider the secondary hazards created from options the Council identified. Mrs B says because the occupational therapist recommended top opening windows the Council should have followed that advice. Having considered the initial occupational therapy report, I am satisfied two options were identified by that occupational therapist. One of those options was for replacement windows with top opening windows. However, the occupational therapist also said window restrictors could be considered. In those circumstances I cannot criticise the Council for considering options other than top opening windows. In any event, as I say in paragraph 11, the legislation is clear the Council has to consider whether the proposed works are necessary, reasonable and practicable. I therefore cannot criticise it for doing that.
26. As I said in paragraph 9, the criteria under which the Council was assessing this application was in terms of works required to make the property safe for Mrs B’s daughter. It is clear the Council does not consider replacement windows qualify for a mandatory disabled facilities grant in this case. That is because the Council is satisfied the current windows in Mrs B’s property do not pose a risk to her daughter provided they are closed. I cannot criticise the Council for reaching that decision as it is not my role to comment on the merits of the Council’s judgement unless it is affected by fault. I have found no fault here in how the Council approached whether replacement windows were necessary to make Mrs B’s property safe for her daughter. I welcome the fact though the Council has sought to work with Mrs B to identify works it can fund to enable Mrs B to open the windows to provide ventilation during summer months.
27. I understand why Mrs B would be concerned the Council decided to pursue the option of window restrictors when the second occupational therapist involved in the case did not recommend them. I have seen no evidence though to suggest the Council made its decision on the works it could fund to the windows without taking into account Mrs B’s views or the views of the occupational therapist. I say that because the evidence satisfies me at each stage the Council has sought the occupational therapist’s view both on the window restrictors and the possibility of window bars as well as seeking comments from Mrs B about those options. In addition, I am satisfied the Council carried out a health and safety risk assessment to establish whether any of the options identified introduced a secondary risk. The Council also gave Mrs B and the occupational therapist an opportunity to comment on proposals before a final decision was made. The report the Council produced which concluded that a combination of window bars and window restrictors were appropriate is comprehensive and assessed each of the options, including the provision of top opening windows, properly. That report also addressed the concerns raised by the occupational therapist and Mrs B. In those circumstances I could not say the Council failed to consider the recommendations from professionals.
28. Nor could I say the Council reached a decision on what it could fund in relation to the windows without considering the secondary hazards resulting from each of the options. As I said in the previous paragraph, the Council carried out a safety assessment for each of the options and that included consideration of the secondary hazards created by each option. It is clear from the Council’s assessment it considered the secondary hazards created from top opening windows were greater than the secondary hazards created by using a combination of window restrictors and bars. It is clear the Council reached that view properly, taking into account the information Mrs B provided about her daughter’s propensity to climb and fascination with open windows. Clearly the Council has reached a decision Mrs B strongly disagrees with. As the Council has reached that decision after properly considering the various options and the secondary hazards associated with them I have no grounds on which I could criticise it.
29. Mrs B says the Council offered a cash alternative without providing details or costings. Mrs B is referring here to the Council’s offer to provide her with the cost of its recommended option of window restrictors and window bars to enable her to put that towards top opening windows should she wish to pursue that option. Mrs B is correct to say the Council has not provided details of how much that would be, although the Council has made clear it would pay the amount direct to any contractor undertaking the agreed works, rather than making a payment direct to Mrs B. However, I have seen no evidence to suggest Mrs B told the Council she wanted to pursue the option of the Council providing funding towards the cost of top opening windows based on the options it had identified it could fund. Until Mrs B has advised the Council this is an option she wants to pursue I see no reason why the Council would have needed to provide Mrs B with details of the amount it would cover.

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Agreed action

30. Within one month of my decision the Council should send a memo to officers dealing with disabled facilities grant applications to remind them of the need to issue a formal decision on the application, particularly where only some of the works have been approved.

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Final decision

31. I have completed my investigation and found fault in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman