Summary: Mrs C says the contractor, acting on behalf of the Council, failed to properly assess her application for a stairlift, released personal information about her to her neighbour without permission and failed to consult her representative, as a freeholder of the building, before declining her application. The Council was not at fault for how it considered the application for a stairlift. The contractor acting on behalf of the Council breached data protection regulations by releasing personal information about Mrs C to her neighbour and failed to follow the right process for consulting freeholders. That did not affect the decision on the application. An apology, payment to Mrs C and the reminder to the contractor about the process to follow is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, is represented by her daughter, whom I shall refer to as Mrs D. Mrs C complained the contractor (Able 2), acting on the Council’s behalf:
• failed to properly consider her application for a stairlift;
• shared personal information without her permission with her neighbour; and
• failed to consult Mrs D, as a joint freeholder of the building, when it consulted the other freeholders about the application.
2. Mrs D says failures by the Council have affected her and Mrs C’s mental health and have jeopardised the possibility of Mrs C obtaining approval for the stairlift from her neighbours.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (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)
6. When a Council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the contractor that carries out occupational therapy assessment on behalf of the Council I have made recommendations to the Council and refer to the Council as being at fault where I have found fault.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs D's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs C, Mrs D and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

9. Disabled facilities grants are available under the Housing Grants, Construction and Regeneration Act 1996. For a grant to be approved the council has to be satisfied the work is:
• necessary and appropriate to meet the disabled person’s needs; and
• reasonable and can be done - depending on the age and condition of the property.
10. The Council’s criteria for major adaptations (the criteria) refers to stairlifts. The criteria says a stairlift will be recommended when a client is unable to negotiate the stairs due to a severe difficulty and does not have access to all essential facilities on the ground floor. It says the client must be able to transfer on and off the stairlift independently and not require hoisted/assisted transfers.
11. The criteria says there are certain conditions for which a stairlift may be deemed not appropriate and it gives some examples, which includes dementia.
12. The Council’s guidelines for major adaptations to the homes of people with disabilities (the guidance) says if the property is leasehold permission will have to be sought from the owner of the freehold and/or other leaseholders under the terms of the lease.

What happened

13. Mrs C lives in a second-floor flat which does not have lift access. Mrs D owns the leasehold for the flat and lives with Mrs C. Mrs C’s building is made up of four flats where each flat owner has a share of the freehold. The building is accessed with external steps and internally there are two flights of stairs involving a curved staircase up to Mrs C’s flat.
14. Mrs C applied for a disabled facilities grant for installation of a level access shower and stairlift in the communal parts of the building in 2019. Able 2 carries out occupational therapy assessments on behalf of the Council. I will refer to Able 2 as the contractor. The occupational therapist told Mrs D a surveyor would need to assess the feasibility of the stairlift installation. Mrs D said rehousing was not an option. The occupational therapist said it may be necessary to seek permission from the other freeholders.
15. In January 2020 the contractor contacted Mrs C’s GP surgery which confirmed Mrs C had a diagnosis of dementia and history of intermittent dizziness and balance problems.
16. The contractor’s occupational therapist reviewed the case and decided not to recommend installation of the stairlifts due to the risks associated. The occupational therapist referred to the communal stairs not being wide enough to accommodate the stairlift and allow people to access the stairs and concerns about Mrs C’s dementia and dizziness/balance issues, particularly given that she would need to transfer from one stairlift to another. The contractor confirmed that decision to Mrs D by email on 28 January.
17. Mrs D challenged the contractor’s decision and asked for another visit. Mrs D told the contractor Mrs C did not have severe dementia and had only experienced one period of dizziness due to an ear infection, which had been resolved. The contractor contacted Mrs C’s GP again. Mrs C’s GP told the Council there were no contraindications for Mrs C to have a stairlift. The contractor decided to complete a risk assessment as the GP had confirmed a dementia diagnosis and dizziness and balance issues previously. That risk assessment concluded the staircases were not wide enough for a stairlift to be fitted in an area which was shared with other residents. The risk assessment also noted Mrs C would not be able to walk up and down the communal external steps even if the stairlift were provided in the communal areas. The contractor told Mrs D about its decision.
18. One of Mrs C’s neighbour’s, with whom she has a difficult relationship, contacted the contractor about what he understood to be a proposal for a stairlift in communal areas. The contractor initially declined to provide any information due to data protection restrictions. However, when Mrs C’s neighbour contacted the contractor again another member of staff told him the stairlift was not going ahead as Mrs C had dementia and dizziness. The contractor and the Council have subsequently apologised to Mrs C for releasing that information without her permission. On the second contact the contractor provided Mrs C’s neighbour with a letter requesting consent from the freeholders for the works to go ahead. Mrs C’s neighbour contacted two of the other freeholders and all three declined to give consent for the works. None of that changed the contractor’s decision to refuse the stairlift on safety grounds.
19. Mrs D continued to express concern about the decision to refuse the stairlift. Following intervention from Mrs C’s MP the Council arranged for an occupational therapist from a neighbouring borough to carry out another assessment in 2021. That occupational therapist noted that even if it were technically possible to install an internal stairlift on the communal stairs this would not give Mrs C access to the street. The occupational therapist noted fire safety approval would be needed and that this was problematic for communal stairs. The occupational therapist noted that although a stairlift could have been explored due to the factors identified it was unlikely to have been possible to install a stairlift.

Analysis

20. Mrs D says the Council failed to properly consider her application for a stairlift. Mrs D says the Council should not write off all those who have dementia and instead the Council should consider the individual circumstances of each applicant. Mrs D says the Council took into account one incident of dizziness which was due to an ear infection which had been resolved and therefore did not affect Mrs C’s ability to use the stairlift. Mrs D also says the Council failed to take into account the fact Mrs C would never use the stairlift independently and would always have someone to help her or the fact that her GP had said it was safe for her to use the stairlift.
21. The documentary evidence I have seen shows the Council’s contractor considered Mrs C’s application for a stairlift in 2020. I have considered the assessment and whether there was fault in how the decision not to recommend a stairlift was reached.
22. The evidence I have seen satisfies me an occupational therapist visited Mrs C to observe her mobility as part of the assessment. I am satisfied the occupational therapist considered the internal communal stairs as well as the external steps. I am also satisfied the occupational therapist sought advice from Mrs C’s GP twice. In addition to that I am satisfied the contractor carried out a risk assessment. Following those assessments the contractor decided Mrs C did not qualify for a stairlift. As the Council’s contractor reached that decision properly after considering all the evidence, including the comments from Mrs C’s GP, there are no grounds on which I could criticise it. I recognise Mrs C strongly disagrees with the judgement reached by the occupational therapist. However, as I said in paragraph 4, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. I have found no evidence of fault here.
23. In reaching that view I recognise Mrs D believes the Council turned down the application due to Mrs C’s dementia and reported dizziness. However, the documentary evidence I have seen satisfies me those formed only part of the reasons why the occupational therapist decided a stairlift was not appropriate. In addition to concerns about the safety of Mrs C using the stairlift due to her medical conditions the occupational therapist also raised concerns about the width of the communal stairs. As part of the decision not to recommend a stairlift the occupational therapist took into account the fact the width of the stairs was not sufficient to allow the space to be shared with other residents. The occupational therapist made clear the width of the staircase would be acceptable within a property but was not wide enough for a stairlift on communal stairs. I am therefore satisfied there were reasons other than Mrs C’s medical diagnosis which persuaded the Council’s contractor a stairlift was not appropriate in this case. That is a decision the Council’s contractor was entitled to reach and it is not one the Ombudsman could criticise as there is no evidence of fault in the decision making process.
24. I have also found no evidence to suggest the Council automatically refuses any application for a stairlift when the user has dementia. The Council’s criteria for assessing the suitability of a stairlift does not say a stairlift will never be agreed for somebody with dementia. Rather, it says there are certain conditions for which a stairlift may be deemed not appropriate, such as when an applicant has dementia. I am therefore satisfied the criteria provides for the Council to make an assessment in each individual case, as I am satisfied it did with Mrs C.
25. Mrs D says the Council’s contractor contacted her neighbours and shared personal information with them without her permission. The Council, and the contractor acting on its behalf, accept personal information about Mrs C was shared with one of her neighbours wrongly in 2020. The documentary evidence shows the contractor told Mrs C’s neighbour the stairlift was not going ahead as Mrs C had a diagnosis of dementia and dizziness. Sharing personal information without permission is a breach of the data protection regulations and is fault. That has clearly caused Mrs C and Mrs D significant distress as they are aware the neighbour they have difficulties with now has personal information about their circumstances.
26. Mrs C says the Council failed to consult Mrs D, as a joint freeholder of the building, at the same time it consulted the other three freeholders. Mrs D says if she had been involved in the meeting this would have enabled her to make representations on behalf of Mrs C which might have persuaded the other freeholders to agree for the stairlift works to go ahead. Mrs D’s comments here are based on her understanding that the Council, or the contractor acting on its behalf, held a meeting with the other freeholders. However, that is not supported by the documentary evidence. There is no evidence a meeting took place. Instead, the documentary records show the contractor sent one of Mrs C’s neighbours a consent form for all the neighbours to complete when he contacted the contractor independently. I recognise one of the other freeholders told Mrs D a meeting took place. However, there is no evidence either that the Council, or its contractor, arranged a meeting or took part in it. As the Council did not arrange or take part in any meeting should one have taken place between the freeholders I have no grounds to criticise it.
27. The Council accepts though the contractor failed to follow the correct process when consulting the freeholders. The Council says the normal process involves the contractor referring the case to the home improvement agency which then contacts the freeholders for consent. That did not happen in this case. Instead, when one of Mrs C’s neighbours contacted the contractor it allowed that freeholder to obtain the response from two other freeholders. Failing to follow the correct process is fault.
28. While the contractor is at fault for not following the correct process I do not consider this likely impacted on the outcome. I say that because it is clear there are significant issues between Mrs C and one of the other freeholders. It is clear that freeholder also opposed the installation of the stairlift in the communal area in 2015. I therefore consider it likely, on the balance of probability, even if the Council had followed the correct process at least one of the freeholders would still have opposed the installation of the stairlift. As the Council requires all freeholders to agree for the installation of a stairlift which involves works to communal areas I do not consider it likely the way in which consent was sought in this case altered the outcome. There is also the matter of the Council’s decision that a stairlift is not appropriate in Mrs C’s case, which I refer to earlier in this statement. Given all of that I consider Mrs C and D’s injustice is limited to their frustration that the contractor did not follow the right process.
29. In reaching that view, I am aware the contractor acting on behalf of the Council did not contact Mrs D to seek her consent for the works. Mrs D was the applicant. In those circumstances I do not criticise the Council’s contractor for assuming she therefore consented to the works taking place. The Council has accepted though that as there were documented issues between Mrs C and at least one of the other freeholders it should have notified Mrs D when it intended to seek consent from the other freeholders. Failure to do that in this case is fault. I am also confused about why the contractor would have needed to consult the other freeholders in this case, given it had already decided a stairlift was not appropriate.
30. I consider a suitable remedy for the disclosure of personal information about Mrs C, failure to follow the correct process for consulting freeholders and failure to tell Mrs D when the contractor consulted the other freeholders would be for the Council to again apologise to Mrs C and Mrs D. I also recommended the Council pay Mrs D £400 to reflect her and Mrs C’s distress and the time and trouble Mrs D had to go to pursuing the complaint. I further recommended the Council write to Able 2 to remind it about the process to follow when consulting freeholders and that it seek evidence from Able 2 that training or discussion with staff has taken place about the need to ensure data protection regulations are complied with when giving out information. The Council has agreed to my recommendations.

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Agreed action

31. Within one month of my decision the Council should:
• apologise to Mrs C and Mrs D;
• pay Mrs D £400;
• remind Able 2 about the process it should follow when consulting freeholders; and
• provide evidence Able 2 has carried out training or had a discussion with staff to remind them about the need to comply with data protection regulations when giving out information.

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Final decision

32. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs C and Mrs D an injustice. The action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman