Summary: Ms X complained the Council failed to tell her it had placed a land charge on her property following disabled facilities grant works. The Council was not at fault for placing a charge on the property. It was at fault for failing to properly consider whether to waive repayment of the grant, for providing conflicting information about the amount due and for requiring repayment of a second grant which was for remedial works resulting from faults with the original works. The Council has agreed to apologise to Ms X, remove the charge for the second DFG, review its decision to require repayment of the grant and pay Ms X £150 to acknowledge the frustration caused to her.

The complaint

1. Ms X complained the Council failed to tell her it had placed a charge on her property following disabled facilities grant (DFG) works. She says she only found out about the land charge when she was selling the house. She says the Council then gave her conflicting information about the amount due. Ms X says this has delayed the sale of her house and caused her frustration and financial loss.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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. I have considered the information provided by Ms X and discussed the complaint with her on the telephone.
6. I have considered the information provided by the Council in response to our initial enquiries, have spoken with a Council officer and considered the relevant law and guidance.
7. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance regarding Disabled facilities grants

8. The Housing Grants, Construction and Regeneration Act 1996 provides the legislation for DFGs.
9. A disabled facilities grant (DFG) can be used by people with a qualifying disability to make adaptions to their home to help them stay living there. They can be used to make improvements, such as level access bathrooms.
10. Councils must award a grant if the applicant meets the criteria. The works proposed must be:
• necessary and appropriate to meet the disabled person’s needs. This is usually assessed by an occupational therapist (OT);
• reasonable and practicable, depending on the age and condition of the property.
11. The Housing Grants, Construction and Regeneration Act 1996: Disabled Facilities Grant General Consent 2008 (General Consent), says that where the DFG exceeds £5,000 the council may impose conditions which allow it to demand repayment or part repayment of the grant if the property is sold or disposed of within 10 years of the work being carried out. This is secured by way of a local land charge against the property. The law says councils may only demand repayment of part of the DFG that exceeds £5,000 but may not demand an amount in excess of £10,000.
12. The General Consent says when deciding whether to demand repayment the Council must consider each case on its merits and must specifically consider:
• The extent to which the recipient of the grant would suffer financial hardship if required to repay all or any of the grant;
• Whether the sale of the property is to allow the recipient of the grant to move for work;
• Whether the sale is connected to the physical or mental health or wellbeing of the recipient of the grant and;
• Whether the sale will allow the applicant to live with, or near, someone needing care or to be cared for.

Background

13. In 2013 Ms X, through the Council’s early years service, applied for disabled adaptations to her property to assist her child. This included a level access shower and ramped access to the property. The case notes show the grant application was submitted in July 2013. The Council approved the application and awarded a grant.
14. The contractor completed the work and the Council’s case notes show it sent the final DFG payment and a land charges memo on 14 March 2014. The Council says the final grant statement and land charges memo are one document. The statement was posted to the applicant and the memo sent to the land charges department so a charge would be recorded on the land charges register.
15. The final grant statement listed the total grant paid as £14,861.53 (consisting of contractors work of £12,811.66 plus agency fees of £2,049.87). Ms X says she did not receive this. The final grant statement says ‘It is a condition of the grant that should the property be the subject of a disposal within 10 years of the certified date the Council may require repayment of all or part of the grant. Where the grant is a mandatory DFG and the amount is amount is in excess of £5,000, the amount repayable will be the part of the grant over £5,000 up to a maximum of £10,000. Where the grant is a discretionary DFG the whole amount of the discretionary grant may be repayable’.
16. Shortly after the work was completed Ms X contacted the Council about the position of the ramp after her neighbour raised concerns. The exterior ramp installed as part of the adaptations was wrongly built on a driveway Ms X shared with a neighbour. Moving the ramp meant Ms X lost an area of patio which she had specifically paid the builder to install. Ms X complained about this and other issues to the Council.
17. In August 2015, the Council agreed to complete and pay for the remaining work including the removal of the ramp, raising the level of the driveway and installing the new ramp at the rear of the property. It agreed to pay for the cost of additional slabs to cover the whole of the patio area and to make a payment to Ms X in recognition of the loss of some of the patio area and to recognise the distress and inconvenience caused.

What happened

18. Ms X was in the process of selling her house. Local searches identified a land charge on her property. Ms X contacted a Council officer in July 2021 to query this. Ms X said she understood the charge was revoked after her complaint about the works. She said the shower was not built big enough and the ramp was in the wrong place. Ms X said the Council obtained a second grant to put the works right.
19. The officer responded in early August. They asked Ms X to provide documentation which showed that because of the complaint she would not be responsible for the grant. Ms X explained her previous complaint and asked the Council to remove the charge or to send her an itemised breakdown of all the works and costs that it was proposing she needed to repay. She considered she should not have to pay given the faults with the ramp. Ms X sent two further emails chasing an update.
20. The Council officer responded in late August. They said there were two disabled facilities grants. One with a certified completion date of April 2014 for £18,576 and one with a certified completion date of November 2015 for £15,709.63. Each had a condition requiring repayment of a maximum of £10,000 upon sale of the property within 10 years of the certified completion date. Ms X replied and asked that her email be treated as a complaint. She said she was aware the Council took out two grants and the money from the second was used to rectify the mistakes made with the works funded by the first grant. She did not consider she should have to pay the costs and requested an itemised breakdown of the grants.
21. The Council responded to Ms X’s complaint in mid September 2021. It explained Ms X was required to pay back the grant costs. It said it agreed to remove the costs of the remedial works and so had sent a new breakdown requiring repayment of £11,555.38.
22. Ms X responded, requesting copies of the agreement to put a charge on her property and a full cost breakdown. Ms X said the delay was holding up the sale of her property. The Council provided Ms X with a spreadsheet showing the DFG costs.
23. This showed the cost of the initial DFG paid in March 2014 was £12,811.66 plus additional costs of £3,714.87 paid in November 2015. The second DFG showed costs of £6,555.38 for works completed in 2015 plus additional costs of £9,694.52 from 2016 which it said it had removed from the calculations as this covered the remedial works. The payment of £6,555.38 included the cost of laying new paving slabs, replacing an external door and making a level access.
24. This meant Ms X needed to repay £11,555.38 which was £10,000 for the first DFG and £1,555.38 (the amount owed above £5,000) for the second. The Council also provided Ms X with a copy of the letter it said it had sent her which stipulated the grant conditions and charges.
25. Ms X remained unhappy and complained to us.
26. To progress with the sale of her property Ms X has paid the Council £11,555.38.

Findings

27. The law allows councils to place a land charge on a property and to recover DFG payments where properties are sold within 10 years of the completion date. The Council therefore had the right to register a local land charge for the DFG carried out to Ms X’s property.
28. The Council no longer has copies of the original application Ms X completed so I cannot now know whether there was any reference on the application to the conditions attached to a DFG. It has a copy of the final grant statement which it says it sent to her in March 2014. Given that this statement and the memo to the land charges team were one document, are referenced in the Council’s case notes and the charge was registered against the property, I am satisfied, on the balance of probabilities the Council sent this letter to Ms X. The letter set out the conditions attached to the DFG.
29. The role of the Ombudsman is to consider complaints of fault leading to injustice and we look to remedy that injustice. Even if I were to say the Council was at fault it would be for not explaining the land charge clearly to Ms X at the time. It would not be fault to apply the charge, which was applied in line with relevant law and guidance.
30. However, the law says the Council must consider whether any of the exceptions set out at paragraph 12 apply before demanding repayment of a DFG. There is no evidence the Council asked for the reasons behind Ms X’s move or explored whether it could exercise its power to reduce or waive the charge.
31. It has made a reduction to the charge but that is in recognition that the second DFG and extra works were as a result of Council fault, as acknowledged in her complaint to the Council at the time.
32. The Council originally told Ms X the land charges were for £20,000. It later agreed to revise this to £11,555.38. It has not explained why there is a land charge for the second DFG. This is fault. The records show the first DFG was for an amount over £10,000. The Council is therefore entitled to require the repayment of £10,000.
33. The Council does not have a copy of any final statement relating to the second DFG or of any OT assessment which shows the second DFG was for any other purpose than rectifying the errors from the original DFG and the remedial works, agreed as part of the complaint response at the time. It is, therefore, not appropriate for the Council to recover further sums for the second DFG.

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Agreed action

34. Within one month of the date of my final decision the Council has agreed to:
• Apologise to Ms X and pay her £150 to acknowledge the frustration caused by the conflicting responses regarding the land charges.
• Reduce the charge on the property to £10,000 and therefore refund Ms X £1,555.38.
• Invite Ms X to provide information to show whether she meets the criteria for the Council to consider whether to waive the charge. The Council should inform Ms X of its decision within one month of receiving this information.
• If the Council decides the criteria apply to Ms X, it should refund the £10,000 paid by Ms X.

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Final decision

35. I have completed my investigation. There is evidence of fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman