Summary: Mr B has a disability and had difficulty in using his adapted bathroom. There was fault as the Council failed to properly progress its assessments of Mr B’s bathroom to determine his need for a further adaption. This caused unnecessary delay. The Council has agreed to apologise to Mr B and pay him £400.

The complaint

1. Mr B complains about a problem with his bathroom which meant it was difficult for him to transfer from the toilet to the shower. He complained about the Council’s process of assessing his needs for the bathroom and says the Council delayed addressing the problem.

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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 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 have discussed the complaint with Mr B and I have considered the information he and the Council have sent and the relevant law, guidance and policies. Both sides were given an opportunity to comment on the draft decision and I have considered their replies.

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What I found

Disabled adaptations

5. Disabled Facilities Grants (DFG) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. There is detailed guidance on good practice.
6. Councils have a statutory duty to provide grant aid to disabled people for certain adaptations.
7. The Council will need to check that the proposed works are:
• necessary and appropriate to meet the disabled person’s needs. Councils will usually consult an occupational therapist (OT) from the local social services department to make the assessment.
• reasonable and practicable depending on the age and condition of the property.
8. The maximum grant that can be paid in England is £30,000 and the grant is means tested.
9. The Act says housing authorities should approve or refuse a grant application as soon as reasonably practicable and no later than six months after the date of the application. The works should usually be completed within 12 months of the approval.
10. The Council’s DFG policy say that the OT must determine what is necessary and appropriate and the surveyor must consider what is reasonable and practical.

What happened

11. Mr B rents his property from a housing association. He has a physical disability and receives care and support from the Council. The housing association carried out adaptations to Mr B’s bathroom in 2018 and 2019. The housing association completed the works to the closomat (a type of toilet) in June 2019. The bathroom is a wet-room.
12. The OT visited Mr B on 21 October 2019 as there had been problems with Mr B’s hoist in the bedroom. During that visit, Mr B said he had some issues in the bathroom with transfers to the toilet and he thought the ceiling track hoist (which the OT had recommended for the bedroom) would be suited in the bathroom.
13. The OT said there was an incline in Mr B’s bathroom floor to aid drainage and, as a result, the stand aid hoist was not level when Mr B was accessing the toilet. A mobile shower/commode had been trialled, but Mr B said it was uncomfortable because of the aperture on the commode. He said he wanted a ceiling track hoist in the bathroom. The OT agreed to discuss the problem with the head of service.
14. On 30 October 2019 the OT told Mr B that the recommendation was for works to be carried out on the current bathroom to create more space. This would involve taking space from the lounge to give greater circulation space. Mr B was happy for this option to be explored. The OT said she would speak to the surveyor to check whether the works were feasible.
15. Mr B called the Council on 8 January 2020. He said he wanted an OT assessment because the wet-room’s floor was not level. He did not want to do a new referral as he said the OT who visited him in October 2019 had ensured him that he only had to call this number and he would be assisted.
16. Mr B called on 3 February 2020 asking for an update on the OT assessment he had asked for.
17. Mr B spoke to one of the OTs in the team on 7 February 2020. Mr B said that, when he was hoisted (with a mobile hoist) to and from his closomat, the hoist became unstable because of the gradient of the level access shower.
18. He said he had raised the problem with the housing association, but they had advised him to speak to the Council’s OT team.

OT visit – 20 February 2020

19. The case was allocated to an OT on 10 February 2020. The OT visited Mr B on 20 February 2020 and carried out an assessment. Mr B said the bathroom had been redesigned by the housing association in 2019 and the closomat repositioned.
20. The note of the visit said:
• ‘OT demonstrated that if the closomat was relocated to close proximity of the left hand wall, on entrance into the bathroom, the hoist would clear the gradient of the shower’. [Mr B] is satisfied with recommendation.’
21. The OT wrote her report and sent a recommendation to the housing association on 17 March 2020.
22. On 14 August 2020, the OT emailed the permission form to the housing association. The housing association gave permission for the works on 17 August 2020.
23. The OT made an application for the DFG on 3 September 2020. She sent a copy to Mr B asking him to sign it. Mr B sent an email on the same day to say that he was not in agreement to proceed. He said he did not think moving the closomat would fix the problem and he had been expecting a surveyor’s input.
24. The surveyor visited Mr B’s home on 5 October 2020, but there is no note of the visit.

OT visit – 28 October 2020

25. The OT visited Mr B on 28 October 2020. Mr B said he would not sign the forms for the works to relocate the closomat as he did not agree to this. Mr B said moving the closomat would not solve the problem. He said the problem was the size of the tray used for the wet floor, which made the floor slope too much. He said the surveyor had confirmed this on his visit on 13 October 2020 (note: I think this was on 5 October 2020). He said he had discussed the possibility of a permeable shower tray with the surveyor.
26. The OT reminded Mr B that, during her visit in February 2020, she had trialled coming into the bathroom with Mr B on the hoist, keeping to the left-hand side of the bathroom which allowed the hoist to avoid the slope of the floor. This was why she recommended relocating the closomat. The OT said Mr B had agreed this at the time, but Mr B denied this. The OT agreed to speak to the surveyor.
27. The OT had a case discussion with a different surveyor as the surveyor who carried out the visit in October 2020 had left.
28. The OT spoke to Mr B on 18 November 2020. She said the surveyor who carried out the visit in October 2020 had left and there was no record on the system of the conversation between the surveyor and Mr B.
29. Mr B said he was not satisfied with the recommendation to relocate the closomat. He said this had been trialled during the visit on 20 February 2020 by his mother and OT, but he said it depended on who the carer was. Some carers were able to avoid the slope and some were not.
30. The OT said she had spoken to the senior surveyor about a permeable shower tray, but they said it was not suitable as the tray would have a step-up/lip.
31. The OT said the initial works to the bathroom were carried out by the housing association without involvement of the Council’s adaptation team. She said her recommendation remained the same and she advised Mr B to approach the housing association.
32. Mr B emailed the Head of Service that he was not satisfied with progress to his bathroom. The Council carried out an internal review of Mr B’s case on 24 November 2020 and agreed to explore Mr B’s preferred option of a permeable shower tray further. The plan was for the OT to specify what the minimum size shower tray would be for Mr B and the surveyor should then say whether this was achievable within the space.
33. Mr B complained on 24 November 2020 that the Council was still using encrypted emails despite his request not to do so. Mr B has explained to me that he can only read encrypted emails on his laptop, not his phone and that it is difficult for him to access his laptop.

Meeting – 27 November 2020

34. The Council had a meeting about Mr B’s case on 27 November 2020. The surveyor said that installing a permeable shower tray would not be level which would have an impact on Mr B’s ability to get in and out of the wet area. The meeting ended with an agreement that the OT and the surveyor would visit Mr B’s property and would explore:
• Mr B’s understanding of a permeable shower tray.
• The size of the existing shower tray.
• Determine which alternative size tray was needed.

OT and surveyor visit – 1 December 2020

35. The OT and surveyor visited Mr B’s home on 1 December 2020. Mr B said the legs of his equipment would veer towards the slope which he found frightening. He also said (which had not been reported before) that, when he was transferred from the hoist to the shower chair, due to insufficient space, the exchange from stand aid to shower chair was very difficult.
36. The surveyor noted that there was no shower tray. The floor was concrete and the slope was where the drainage was situated. The wall between the bathroom and lounge was load bearing.
37. The surveyor said that a permeable tray would not work as there would be a lip/edge to enter and because of the drainage. He said the shower area could not be reduced further in size as this would make it too small. Moving the closomat would be an option but Mr B disagreed with this proposal.

Panel meeting – 21 January 2021

38. The Council’s panel discussed the options on 21 January 2021. The panel noted Mr B used an electric standing hoist to transfer to the closomat. The panel recommended that the OT should investigate whether Mr B would still have the problems he currently has, if he transferred to and from the closomat via a shower chair rather than the hoist. The panel said the OT should carry out a risk assessment relating to the hoist.

OT visit – 26 January 2021

39. The OT visited Mr B to carry out the assessment. The OT raised the option of transferring onto the shower chair before going into the bathroom. Mr B said he had told the OT before that he could not tolerate the horseshoe shower chair for more than 20 minutes because of pain in the buttock area.
40. The OT explained that a permeable shower tray was not feasible so therefore the option of an extension was being considered. She said she would send out a letter to that effect.
41. The OT manager spoke to Mr B on 5 February 2021. Mr B said he normally used the closomat first, then he transferred to the shower using the electric hoist. He could not use a horseshoe shower chair over the closomat because of the pain. He had trialled an alternative horseshoe cut out but it had been uncomfortable. Mr B sent links to flooring and drainage systems which he thought may be used in his bathroom.
42. The OT manager sent an email to Mr B on the same day and said he had considered the flooring and drainage systems and would consult with the council’s adaptations team manager.
43. The manager said he understood that there had been attempts in the past to try to resolve the problem by more comfortable seating/cushioning for his shower chair. He said they would try to explore this further as there may be alternative options on the market as products were continually evolving and changing.

Mr B’s complaint – 4 March 2021

44. Mr B complained to the Council on 4 March 2021 about the delays in fixing the floor in his bathroom. He said he had raised the issue in late 2018 and never received a response to his complaints and received conflicting answers from people.
45. The panel sat on the same day and discussed Mr B’s case.
46. The OT manager emailed Mr B on 5 March 2021. He said the Council proposed an extension to Mr B’s bathroom to meet his long-term needs. This was subject to the housing association’s approval and a site visit by the surveyor. In the following weeks, the surveyor tried to visit Mr B’s property but Mr B would not agree to the visit until the Council responded to his complaint.

Council’s initial response to the complaint – 17 March 2021

47. The Council’s initial response said that a provisional agreement had been made to extend the bathroom, but the Council was waiting for permission from the housing association for the surveyor to progress the plan.

Mr B’s complaint – 22 March 2021

48. Mr B was not satisfied with this response so he went to the Ombudsman. He said he had not given his agreement to an extension. He had raised the problem with the bathroom long before the recent recommendation for an extension.

Council’s final response to the complaint – 6 April 2021

49. The Council responded to Mr B’s complaint and said:
• It was first alerted to the problem of the bathroom floor during the OT visit on 21 October 2019.
• Following that visit, it was decided that a surveyor would be allocated to visit Mr B’s property but this did not happen. The Council apologised for the delay this caused.
• The case was allocated to an OT in February 2020 and she recommended moving the closomat to resolve the problem.
• ‘It was not until 28 October 2020 that the service was made aware that you no longer wanted to proceed with the recommendation of relocating the toilet.’
• The Council then set out the actions that had taken place (as outlined above) which then led to the provisional approval of an extension on 4 March 2021.
• The Council apologised for any delay and said it would like to move proceedings forward with the surveyor completing the site visit in April 2021.

Council’s actions after the complaint

50. A different OT and surveyor visited Mr B’s property on 26 April 2021, accompanied by a councillor. The aim of the visit was to obtain a second opinion on any alternatives to meet Mr B's needs.
51. Mr B said the wet area should be replaced with some type of level decking that drained the water or a long shower gulley set into the flat floor. The OT discussed the implications of having a flat floor in a wet room. There was the likelihood that the wet room would not contain the water and the water may spill into the hallway.
52. The OT agreed to look at the feasibility of decking options.
53. The OT also said he would explore finding a suitable freeway shower chair with extra padded seat. Mr B agreed that, if a chair with more comfortable padded seating was found, then he might be happy with the present layout and works to the bathroom could be avoided.
54. The OT sent an email to the surveyor on the following day with a detailed proposal to install a grilled floor which would be level and which would allow drainage to the floor below. The OT emailed Mr B on 28 April 2021 with a summary of his proposal.
55. The OT also contacted companies which may provide a wheeled shower chair with a more comfortable seat, but he was unable to find a suitable alternative that had not already been explored.
56. The OT therefore progressed the alternative plan which was the installation of a ‘neatdeck’ shower tray. This was a unique product and it was different from a wet room shower as it did not need a slope to assist drainage. The final specification for this proposal was completed on 30 June 2021. The Council sent the paperwork for the DFG to Mr B on 10 August 2021. It is my understanding that Mr B is in agreement with the latest proposal of the ‘neatdeck’ shower tray.

Analysis

57. When Mr B first approached the Ombudsman about his complaint, he had only received the Council’s first complaint response from March 2021 and he was not satisfied with this response. He was also not in agreement with the proposal at the time which was to build an extension.
58. Things have progressed since then as a workable solution has now been found to the problem. I have therefore focussed my investigation on the delay in reaching that solution. The Council also sent a further more comprehensive response to Mr B’s complaint in April 2021.
59. In terms of the complaint response, I uphold Mr B’s complaint that the initial response was not satisfactory and this was fault.
60. The Council’s response did not address the long delay from October 2019 which it should have done. Also, the Council’s reply suggested that any delay was caused by the housing association not approving the extension to the house which was not the cause of the delay. The delay was caused by the Council’s OT not progressing the case. Finally, the Council said it was not aware that Mr B disagreed with the proposed relocation of the closomat until October 2020. That is true, but the Council failed to mention that it did not send the consent form to Mr B until September 2020 which was the underlying reason for the delay.
61. In terms of the assessments for a DFG and the delays, I have considered whether there is any fault in the Council’s actions.
62. When it comes to disabled adaptations, the Ombudsman would expect the Council to act in line with any statutory requirements, guidance and policies. The Council should obtain the correct assessments by the suitable experts such as an OT or a surveyor in line with the guidance and its own policy. If there is a failure in the way the assessments were carried out or the way the Council made its decisions, the Ombudsman can find fault.
63. Mr B first raised the problem with the bathroom slope in October 2019. The OT agreed on 30 October 2019 that works to the bathroom were needed and she agreed to progress these works, but then failed to take any further action. She did not refer the matter to a surveyor or progress the case in any way. This was fault. The matter should have been referred to the surveyor. The OT should have communicated with Mr B and the housing association and obtained their consent but failed to do so.
64. It was only because Mr B started chasing the Council in January and February 2020 that the case was re-opened. Therefore, the delay between October 2019 and February 2020 was fault. I note that the Council has already apologised for this delay.
65. The OT then carried out a visit to Mr B on 20 February 2020 and the recommendation from her assessment was to move the closomat. She sent a recommendation to the housing association in March 2020 but there was then no further action until August 2020 when she sent the approval form to the housing association. She did not refer the matter to a surveyor or communicate with Mr B. This was further fault.
66. The OT sent a consent form to Mr B in September 2020 and it was at this stage that Mr B said he did not agree to the move of the closomat.
67. The surveyor visited Mr B’s property on 5 October 2020, but failed to make a record of the visit and then left the Council. This failure to keep a record was fault and meant that the first surveyor visit which was properly recorded did not take place until 1 December 2020.
68. The OT re-visited Mr B’s home on 28 October 2020 to re-assess the bathroom but her advice remained the same (relocation of the closomat). She discussed this with a different surveyor as the surveyor who had carried out the visit in October had left. I would have expected there to be a further surveyor visit at this stage as the Council did not have a record of the previous visit in October.
69. Mr B disagreed with the proposal and then complained. The Council agreed to pursue Mr B’s preferred option which was a permeable shower tray and the OT and the surveyor attended Mr B’s property in December 2020 to carry out assessments but they both agreed that a permeable shower tray would not work. After further visits from the OT and surveyor, the Council offered an alternative in January 2021 which was an extension but Mr B did not want this.
70. After the complaint, the Council instructed another OT and surveyor and the offer of a ‘neat-deck’ was made in April 2021 which Mr B agreed to.
71. Therefore, although there was a long time-lapse between October 2020 and April 2021 when a solution was found, I would not say this entire passage of time was fault. The Council continued to assess and consider alternatives which would meet Mr B’s needs. These included relocating the closomat and the building of an extension. The Council also considered Mr B’s preferred option which was a permeable shower tray but concluded that this would not meet his need. The Council made various proposals which were based on their assessments of Mr B’s situation. This process took time to find a solution which met Mr B’s needs and his preferences.
72. Mr B also complained that the Council sent him two encrypted emails although he told them not to send encrypted emails. I accept the use of encrypted emails is helpful to ensure data is protected, but, if a person asks not to be sent encrypted emails, because their disability makes it more difficult to access those, then the Council should have listened to that request.

Injustice

73. I have considered the injustice that Mr B suffered as a result of the fault.
74. The main fault I have found was the Council’s failure to properly assess and progress Mr B’s need for adaptation from October 2019 to February 2020 and then March 2020 to October 2020. There was also fault in the failure of the surveyor to keep a record of the visit on 5 October 2020.
75. Mr B continued to use his adapted bathroom throughout this time, but the slope made it more difficult for him and the care workers to transfer between the closomat and the shower and put him and the care workers at greater risk of injury.
76. Mr B has not suffered financial injustice as a result of the fault but the greater difficulties in the use of the bathroom and the frustration of having to chase the Council would have caused distress to Mr B.
77. The Council has agreed to pay Mr B £400 to reflect the distress caused.

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Agreed action

78. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Mr B for the fault.
• Pay Mr B £400.

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Final decision

79. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman