Summary: Mrs B needed adaptations to her house to enable her to use the bathroom. The Council has not shown that it considered all the factors when it chose between two different proposals for the works and this was fault. It is therefore not certain whether the decision was correctly made. The Council has agreed to apologise to Mrs B and review the decision, taking all the factors into account.

The complaint

1. Mrs B says the Council has not properly considered her alternative proposal to adapt her property to meet her needs.

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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 an organisation’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 Mrs B. I have considered the documents she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

5. Disabled Facilities Grants are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to give grant aid to disabled people for certain adaptations.
6. The Act says the Council must be satisfied, before approving the grant that:
• the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and
• it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the property.
7. The government has published ‘Disabled Facilities Grant (DFG) delivery: Guidance for local authorities in England’ in March 2022. The government says this Guidance ‘brings together and sets out in one place existing policy frameworks, legislative duties and powers, together with the recommended best practice, to help local authorities provide a best practice adaptation service to disabled tenants and residents in their area.’
8. The Guidance says:
• In developing specifications, authorities should consider the aesthetics of the adaptations as well as functionality.
• Local authorities should ensure that the needs of applicants are at the heart of the grant application process, including specification design.
• Authorities should approach adaptations as a longer-term investment, particularly when they may be used by future residents.
• In all cases, clients should be fully involved with the design and specification of works to their home.
• ‘There may be occasions when a client would prefer a more extensive adaptation than the authority has assessed as being necessary and appropriate. In these cases, it can still be appropriate to support the application, while making it clear what level of grant will be available and how much additional funding is required. Authorities should not withhold support simply because the applicant has the means to fund more extensive works than could be funded by grant alone.'

What happened

9. Mrs B is an adult woman who lives in a house with an upstairs bathroom.
10. The Council’s occupational therapist (OT) became involved in August 2018 because Mrs B had underlying physical conditions which meant she was unable to use her bath without assistance.

October 2018 – OT assessment

11. The OT assessed Mrs B as needing a level access shower in October 2018. The case was to be allocated to the Council’s housing team to carry out the works.

May 2019

12. Mrs B contacted the Council in May 2019 as the works had not been carried out yet. The Council told her that her case was still with the housing team waiting to be allocated.

October 2019

13. The case was allocated within the housing team in September 2019 and the Council carried out a feasibility visit in October 2019. Mrs B said her health had further deteriorated and she had had several falls going up the stairs. She struggled to mobilise and she had problems with her balance. The Council recommended the installation of a level access shower and a stair lift.
14. The Council spoke to Mrs B in November 2019 and she agreed for the scheme to go ahead.

June 2020

15. The Council carried out a home visit and Mrs B said she did not want the stairlift. She had submitted plans for an extension to the house which would provide her with a downstairs bedroom and bathroom. She asked the Council whether it would agree to put the money for the planned adaptations towards this extension which she would privately fund. The Council said that was not an option as her house could be adapted to meet her needs within the existing footprint.
16. The Council closed the case in July 2020 as Mrs B did not want to go ahead with the Council’s proposed scheme.

October 2020

17. Mrs B challenged the Council’s decision via her councillor in October 2020. The OT spoke to Mrs B on October 2020 and said the Housing Department ‘no longer offer the equivalent cost scheme’.
18. The OT had further conversations with Mrs B in December 2020. He said that, in light of Mrs B’s vertigo, balance problems and risks of falls, a stair lift may not be suitable and a through lift may be required to meet her needs. He agreed to re-assess Mrs B’s needs.
19. The OT and a lift expert visited Mrs B’s property in December 2020. The OT re-assessed Mrs B and concluded that a through lift was needed. My understanding of the proposal was that the lift would be situated in the living room and go through to the upstairs bedroom reducing both rooms in size.
20. Mrs B said she did not want a lift and would be anxious to use it because she suffered from vertigo. The OT said the Council would have to look at the most cost-effective option which was the lift. Mrs B said she could not understand, if that were the case, why the Council could not pay the money for a lift toward the extension. The OT said that was ‘not something that is usually offered anymore.’
21. The OT spoke to Mrs B in February 2021 and said the through lift would be feasible but would mean that the upstairs wardrobes would have to be removed. Mrs B said she did not want to lose her wardrobes and ‘make a mess’ of the house. The OT said the Council made recommendations based on her mobility needs. Mrs B repeated her request for the Council to pay the equivalent cost of the works towards her proposal to build an extension. The OT said ‘this scheme is no longer offered routinely by housing and she would need to discuss this with housing.’
22. The OT spoke to Mrs B in March 2021. He said that the decision to offer the ‘equivalent cost’ was up to housing but, as there was a feasible scheme ‘the equivalent cost scheme would not be applicable in this situation.’ Mrs B said the lift did not meet her needs and would devalue her property. The OT said the Council was not concerned with property value and the recommendation was based on her health conditions and presentation.

Mrs B’s complaint

23. Mrs B said:
• The Council had offered her a DFG for a lift which it said was a ‘feasible and practicable’ and refused to consider a better alternative which she had proposed.
• She disagreed that the Council’s proposal was practicable.
• She listed all the reasons why her proposal was more practicable than the Council’s.
• The Council’s proposal meant that the size of the living room and bedroom would be substantially reduced.
• The living room and bedroom would be effectively ‘ruined’ as there would be a lift in the rooms.
• The built-in furniture (which cost £6,500) in the bedroom would have to be removed.
• She would have to replace some of the furniture in her living room as it would be too small, including her sofa which cost £2,500.
• Her suggested proposal was reasonable and practicable and was better than the Council’s proposal.
• The works were about 70% complete and she wanted the Council to put the costs of the lift towards the works she had privately funded therefore the cost to the Council would be the same.
24. The Council said:
• The DFG was provided under Housing legislation and the Council had to recommend the most cost-effective scheme.
• The Council could not provide her with the contribution she wanted as the recommended scheme remained ‘feasible and practicable.’
• The equivalent cost scheme was only available if the modifications could not be achieved within the existing footprint of the house.

Response to the Ombudsman

25. I said the Council’s reply suggested that the Council had no discretion as it seemed to be referring to a policy change which said the Council could only offer the equivalent cost if the scheme could not be achieved within the existing footprint of the house. I asked the Council to provide me with the relevant legislation, guidance or policy.
26. The Council said it had no policies and referred me to the general 1996 Act requirements which said the scheme should be ‘necessary and appropriate’ and ‘reasonable and practicable.’ to meet the needs of the disabled occupant. It said the OT had said the extension was not ‘necessary or appropriate’ to meet Mrs B’s needs.
27. It said it had no discretion as it had to carry out the most cost-effective scheme and follow the recommendation of the OT.

Analysis

28. It is not the Ombudsman’s role to carry out an assessment of Mrs B’s eligibility for a DFG or to decide what DFG scheme she should be offered. I can only investigate whether, on the evidence I have seen, the Council has properly considered all the factors including the relevant law, guidance and best practice, when it made its decision.
29. One of the principles of good administration is that councils should consider each case on its own merits and, where a council has discretion to make a decision it should not fetter this discretion.
30. In making my decision, I have also considered the Guidance issued by the government. I am aware that this Guidance is recent and was not yet issued when the Council made its decision. However, as the government website says, this Guidance brought together the existing policies and best practice so it did not introduce new legislation, policies or best practice.
31. From the evidence I have seen, the Council has not properly considered all the factors and has fettered its discretion in dismissing Mrs B’s proposal. My reasons are as follows.
32. The Council said it rejected Mrs B’s proposal as it had a duty to provide the most cost-effective scheme which was, of course, correct. But Mrs B’s proposal would not cost the Council any more than its own proposal so this did not explain why the Council rejected Mrs B’s scheme.
33. When making a decision where the Council has discretion, the Council has a duty to consider using that discretion taking into account all relevant matters. It should apply its mind to the question given weight to those matters and should provide an explanation for its decision.
34. The Council repeatedly said it ‘could not’ consider any proposal which extended the footprint of the house as there was a proposal which could be delivered within the existing footprint. The Council has never explained why this was the case. The Council has, in essence, fettered its discretion by refusing to consider alternative proposals without good reason.
35. Mrs B made several arguments why she felt that her proposal was aesthetically and practically better than the Council’s proposal, both in the short term and the long term. The Council has never considered those factors. On the contrary, the Council suggested, several times, that it could not take into account Mrs B’s views or the aesthetics of the scheme or any other factors.
36. That was not the case. The Council could take those matters into consideration and had a duty to do so. The Guidance says that councils should consider the ‘aesthetics of the adaptations as well as functionality’. The Guidance says councils should ‘approach adaptations as a longer-term investment’ and the Council failed to show that it had considered these matters.
37. I note also that the Guidance says there may be occasions when a client would ‘prefer a more extensive adaptation than the authority has assessed as being necessary and appropriate’. The Guidance says that authorities should not withhold support simply because the applicant has the means to fund more extensive works than could be funded by grant alone. Therefore, there is nothing in the legislation or Guidance preventing the Council from considering Mrs B’s proposal.
38. Mrs B has suffered an injustice as it is not certain whether the Council made its decision properly. The Council has agreed to review its decision. In doing so, it should properly consider all the factors and set out its reasons for the decision.

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Agreed action

39. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Mrs B in writing.
• Review its decision, taking into consideration all the relevant matters. The Council should provide Mrs B with a written decision setting out why it has made the decision.
   

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Final decision

40. 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