Summary: We upheld part of Mr X’s complaint about the Council’s funding for a disabled facilities grant to adapt his home for his son. The Council failed to consider whether it should pay a discretionary grant towards the work. This created uncertainty for Mr X about whether more funding should have been available. The Council agreed to apologise and consider Mr X’s request for discretionary funding.

The complaint

1. Mr X complains the Council failed to explore other sources of funding for adaptations carried out to the family home for his son, Y. He is also unhappy with the Council’s handling of his complaint. Mr X says he has incurred costs in raising funds for the adaptations and the lack of funding contributed to problems with the adaptations. He says this has caused stress and inconvenience to the family and left his son without the adaptations he needed.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). I have exercised discretion to consider Mr X’s complaint about the funding arrangements for the adaptation. This is because he has only recently become aware that additional sources of funding may have been available to him.
4. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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)

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How I considered this complaint

6. I have considered the complaint made by Mr X and the documents he provided.
7. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
8. Mr X and the Council 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

Law and guidance

Disabled Facilities Grants

9. Under the Housing Grants, Construction and Regeneration Act 1996, councils can award Disabled Facilities Grants (DFG) to people whose disability means their home needs adaptation. If the person applying meets the qualifying criteria the council must award the grant.
10. Councils only approve grants for work they decide is necessary. An occupational therapist usually assesses need. Where a borough council is responsible for DFGs, the occupational therapist may work for a county council. Borough and county councils should work together to provide a well-coordinated DFG service.
11. The maximum amount of mandatory grant is £30,000. Grants for children are not means-tested. Councils can decide to give more help if they think it is necessary. If an adaptation is required to meet an assessed need and the cost of the works will exceed the maximum grant available, the remainder should be met either by the borough council using its discretionary powers or by social services departments at the county council under the other legislation set out below.
12. The guidance also says other charges incurred as part of the works are eligible for grant funding such as architects’ and surveyors’ fees and charges for planning permission or building regulations approval.
13. A council must decide if the proposed works are necessary and appropriate to meet the needs of the disabled person. It must also be satisfied it is reasonable and practicable to carry out the works given the condition of the property to be adapted. In cases where major adaptations are required and it is difficult to provide a cost-effective solution, councils may consider the possibility of supporting a person to move to a more suitable home.

Other sources of funding

14. In 2002, the government introduced the Regulatory Reform (Housing Assistance) Order. This provided councils with wide discretionary powers to help with adaptations. Such help may be subject to conditions including repayments or contributing towards the cost of the work. Where councils choose to exercise these discretionary powers, they should publish a policy which sets out how they will so do.
15. Under the Chronically Sick and Disabled Persons Act 1970, councils with social services functions have a duty to arrange for adaptations to a person’s home to secure their safety, comfort or convenience.
16. Under Section 17 of the Children Act 1989, councils with social services functions have a duty to safeguard and promote the welfare of children in need in their area. A child with a disability is a child in need. Under the Act, councils can provide financial help to a child or family. Such financial help may be unconditional or subject to repayment in full or part. Before providing financial help, councils should consider the child or parents’ financial circumstances. The courts have said the functions of a council under Section 17 of the Act can extend to providing major adaptations to a child’s home.

Approach to DFG by the Council

17. The Council’s Housing Renewal and Financial Assistance Policy in place at the time of the events complained about sets out its approach to discretionary DFG. It said it may award discretionary help subject to resources and means-testing, including grants for the benefit of a disabled child or young person.
18. The policy said the Council could use discretionary grants to top up the financial help for adaptations when the reasonable cost of the work exceeded the set maximum limit for mandatory DFG. Discretionary grants would be registered as a charge on the property and would be recoverable on its sale or transfer.
19. The policy also said the Council and home improvement agency charge fees for the service they provide beyond the statutory minimum necessary to approve a grant application. The fee was 7% of the cost of the works for the Council and 3% for the home improvement agency. The Council would pay these directly as a grant, in addition to the maximum mandatory DFG.

Complaint handling

20. The Council’s complaint procedure has two stages. At stage one an officer will aim to respond within 10 working days. If the complainant is unhappy with the response, they can request further investigation at stage two.
21. The complaint procedure says a person can make a complaint in several ways including by letter, telephone, email, in person, on a complaint form, through the Council’s website or through a representative.
22. The Ombudsman publishes guidance for councils on complaint handling. This says councils should have procedures in place for effectively identifying and accepting a complaint, no matter how it is raised.

What happened

Disabled Facilities Grant

23. Mr X’s son has a condition which causes progressive muscle weakness. He uses a wheelchair and needs support with other aspects of daily living.
24. In 2014, Mr and Mrs X approached the Council about adaptations to meet their son’s needs. At the time, the Council ran a co-located service with officers from the county council.
25. The Council proposed four options to Mr and Mrs X:
1. Build an extension to the rear of the property, with an estimated cost of £55,000.
2. Carry out alterations internally with a smaller extension to recover lost space and facilities, with an estimated cost of £30,000.
3. Move to another property which had already been adapted or was suitable to be, with a contribution of £30,000 from DFG towards moving and carrying out any adaptations.
4. Move to social housing which had already been adapted or was suitable to be.
26. The Council said if Mr and Mrs X chose option a) they would need to consider how to fund the shortfall between the maximum grant of £30,000 and the cost of the work. It said it had plans for option a) and diagrams for option b). An architect considered option b) was a workable solution.
27. In early 2015, an NHS occupational therapist contacted an occupational therapist employed by the county council to say Mrs X’s preference was for option b) while Mr X preferred option a). The occupational therapist asked if a builder could provide an estimated cost of both options for the family to consider.
28. In response, Mr X said he wanted to continue with formalising the plans for option a) but said he did not exclude option b).
29. At the end of March, the county council’s occupational therapist contacted Mr and Mrs X. They said option a) had been estimated at over £45,000 and option b) at almost £38,000, including extra costs such as architect fees. The occupational therapist told Mr and Mrs X the maximum grant that could be awarded was £30,000.
30. In June, the Council approved a planning application for a single storey rear extension in line with option a).
31. In July, the county council’s occupational therapist emailed Mr and Mrs X from a Council email address. They said if the family was considering a full extension to the rear of the property, they would need to confirm they had secured extra funding as the occupational therapist could not proceed without knowing the entire project would be paid for once completed.
32. In August, the architect drew up plans for a revised scheme which did not require planning permission. This plan involved internal alterations with a full-width rear extension.
33. In December, the Council formally approved a DFG for £32,758. It said this was made up of £30,000 mandatory grant and £2,758 discretionary grant to cover home improvement agency and Council fees. The Council told Mr X he would be liable for all costs above the approved DFG as the contactor’s price for the option he chose was substantially higher.
34. Work began in 2016, in line with the plans drawn in August 2015 but with some alterations to meet accessibility and building constraints. A series of problems occurred with the adaptations since then which Mr X is pursuing through other routes, including taking legal action against the Council.
35. Mr X says the Council did not tell him about other sources of funding for the adaptations. As a result, he and Mrs X took out loans, extended their mortgage and sold their car to fund the works not covered by the grant, amounting to almost £40,000. He later became aware, after seeking legal advice, that other funding may have been available through the Chronically Sick and Disabled Persons Act 1970 or the Children Act 1989.

Complaint handling

36. Mr X says he asked to log a formal complaint in April 2017. In August he told the Council he intended to make a formal complaint once he and the Council had discussed options to resolve problems with the adaptations. Emails from the Council show Mr X was provided with information about making a complaint online in late October 2017. The Council says it did not receive a complaint at that time.
37. The Council first logged a complaint in March 2019, in response to correspondence from Mr X’s MP. Mr X said the Council could begin investigating what it believed were the main areas of complaint, but he would also be providing a list of other issues to be considered. The Council said it would wait to receive further information from him.
38. Mr X made a detailed complaint through a representative in May 2019. The Council responded in June. It continued to correspond with Mr X about the adaptations.
39. Mr X’s representative contacted the Ombudsman in July 2020. As the complaint had not completed all stages of the Council’s complaint procedure, we asked the Council to provide its final response. It wrote to Mr X in November 2020. It apologised if Mr X had asked to make a formal complaint in 2017. It said because of the number of letters and emails being exchanged at the time, officers may have believed they were working with him to find a solution. It said Mr X did not follow up his request to make a complaint until March 2019 and he did not ask to escalate his complaint once the Council responded in June.
40. Mr X remained dissatisfied and returned to the Ombudsman.

Analysis

Disabled Facilities Grant

41. The Council does not have social services functions under the Chronically Sick and Disabled Persons Act 1970 or the Children Act 1989. These are functions of the county council which Mr X has complained about separately. Therefore, the Council could not make other funding available under these acts.
42. The Council was correct to tell Mr X it would only fund the least expensive option it considered necessary and appropriate to meet his son’s needs. The Council offered a discretionary grant of almost £3,000 to account for extra fees. But the Council knew the cost of the less expensive option still exceeded the maximum mandatory grant available. There is no evidence the Council considered whether it could have made a further discretionary payment to top up the financial help for adaptations when the reasonable cost of the required work exceeded the maximum mandatory DFG. This was fault. This creates uncertainty for Mr X about whether more funding may have been available to him from the Council.
43. I cannot direct the Council to make a discretionary payment to Mr X; that is the Council’s decision to make. The amount of discretionary grant is means tested and involves a charge being placed on the property which Mr X may not want to pursue. However, I have recommended the Council now consider whether a discretionary grant is appropriate in this case.
44. Mr X says he did not choose the most expensive option and the work which was eventually carried out to the house was of a similar scale to option b) set out in paragraph 25. He says the family sought to reduce costs where they could. Mr X will have an opportunity to make his case for further funding when he applies for the discretionary grant.
45. I cannot say the available funding was a factor in the problems which later emerged with the adaptations. Mr X is pursuing these matters by other means.

Complaint handling

46. To date I have not seen evidence Mr X asked the Council to record a formal complaint in April 2017. It sent him information about how to complain in October 2017 but there is no record of him doing so. Therefore, I do not find fault with the Council for not investigating a complaint at those times.
47. I also do not consider it fault for the Council to have waited to receive the full details of Mr X’s complaint before proceeding with its investigation. Mr X had said he intended to provide this in correspondence in March 2019 and provided it in May.
48. The Council’s complaint procedure says it will provide a response at stage one within 10 working days. In Mr X’s case it took 20 working days. This is fault but I do not consider it caused a significant injustice to Mr X.

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Agreed action

49. Within one month of the final decision, to remedy the injustice caused to Mr X, the Council will:
• apologise for failing to consider whether an additional discretionary grant should have been offered in this case.
• invite Mr X to apply for additional discretionary funding for the original building works. The Council will consider Mr X’s application, write to him with its decision and the reasons for it and send a copy to the Ombudsman. The application will be considered under the financial assistance policy which was in place at the time of Mr X’s application for a disabled facilities grant.

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Final decision

50. I have completed my investigation with a finding of fault for the reasons set out in this statement. Mr X was caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman