Summary: Mrs X complained the Council refused to carry out disabled adaptations to her Council owned property to meet the needs of her disabled child. The Council was at fault in its refusal to allow Mrs X to apply for a disabled facilities grant. As a result, the family missed the opportunity to apply for a grant. The Council has agreed to apologise and make a payment to Mrs X, offer Mrs X the opportunity to apply for a disabled facilities grant and review its procedures.

The complaint

1. Mrs X complained the Council has refused to carry out disabled adaptations to her Council owned property to meet the needs of her disabled child. As a result they are living in a property which does not meet their child’s needs.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
4. 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

5. I considered the information provided by Mrs X and discussed the complaint on the telephone with her. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Mrs 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

Disabled Adaptations

Disabled adaptations for council tenants

7. Where a council is the social housing landlord, it can make adaptations for its disabled tenants as their landlord. It may assess the need for these disabled adaptations using an Occupational Therapist (OT), separately from a council’s social care authority’s assessment of their social care needs.

Disabled Facilities Grants

8. Disabled Facilities Grants (DFG)s are capital grants that are available to disabled people of all ages and in all housing tenures (i.e. whether renting privately, from a social landlord or council, or owner-occupiers) to contribute to the cost of adaptations to enable eligible disabled people to continue living safely and independently at home. People can apply in writing for a DFG, so long as their application contains certain specified information. (The Housing Renewal Grants Regulations 2016)
9. S19(1) of the Housing Grants, Construction and Regeneration Act 1996 sets out that a tenant can apply for a DFG. The definition of a tenant includes a secure tenant and an introductory tenant. These are both types of council tenancies.
10. Government guidance (Disabled Facilities Grant (DFG) delivery: guidance for local authorities in England) published in March 2022 sets out that ‘disabled Facilities Grants are capital grants that are available to people of all ages and in all housing tenures (i.e. whether renting privately, from a social landlord or council, or owner-occupiers) to contribute to the cost of adaptations’. The guidance says ‘Eligible council tenants can apply for a DFG in the same way as any other applicant. However local housing authorities with a Housing Revenue Account (HRA) should self-fund home adaptations for council tenants through this account’.  Before approving a grant, a council must be satisfied the work is necessary and appropriate to meet the disabled person’s needs and it is also reasonable and practicable to carry out the works.
11. Usually the Council relies on the opinion of an occupational therapist (OT) to decide what is ‘necessary and appropriate’. In this case the OT is from the County Council.
12. A recent High Court case concluded a council tenant’s DFG application must be treated on the same basis as would an application by an owner occupier. The judge concluded ‘in my judgement it is not lawful to refuse a DFG on the ground that the claimant must move home’. (McKeown, R (On the Application of) v London Borough of Islington [2020 EWHC 779)

The Council’s disabled adaptations policy – Council housing stock

13. The Council has published a policy setting out how it will respond to requests for disabled adaptations to the homes of Council tenants. It sets out that the increase in demand for social housing requires a greater focus for supporting tenants to consider how their housing needs may be met in the longer term and that as their needs change tenants may be required to move to a more suitable property.
14. It says in order for property adaptation work to be considered, tenants must request a referral to an OT approved by Surrey County Council, usually Adult Social Care or Children’s Services. It says: ‘the OT assessments will be considered by the Council who decides what is reasonable in relation to its need to make housing available to a wide range of people in housing need over the long term’.
15. Under the policy it says adaptations may be declined in favour of rehousing where:
• It is not appropriate to meet the assessed need in the current home because of financial costs
• The property is under occupied under the bedroom allocations in the prevailing Allocation Scheme
• There will be an adverse impact upon the future use of the property
• It is impractical to adapt the property
• There are available alternative solutions to meet the tenant’s assessed needs
• Adaptations will not be completed where the household’s needs can reasonably be met through rehousing within a 24 month period from the date at which RBC is made aware of the tenant’s assessed needs.
• A tenant’s mobility needs are better met by a move to a property on the ground floor

Housing allocations

16. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
17. The Council operates a choice-based letting scheme with a banding system for applicants on the housing register. Applicants are placed in a band based on their housing circumstances and need.
18. The Council’s allocations policy sets out the criteria for the different bands. Band A is the highest priority (applicants with an emergency need to move) and Band D the lowest.
19. Band B is for applicants with an urgent need to move. This includes those:
20. “with a need to move for a medical reason or due to a disability and whose housing is unsuitable for urgent, but not life threatening, medical reasons or due to their disability, who do not qualify for Band A but whose housing conditions directly contribute to causing serious ill health”
21. Band C1 is for applicants with an identified need to move. This includes those who are assessed as:
22. “having an identified health or welfare need to move and whose housing is unsuitable for non-urgent medical reasons or due to their disability and whose housing conditions directly contribute to causing ill health.”

What happened

23. Mr and Mrs X live with their children in a Council owned property. Their youngest child, Y, is below school age and has significant needs. Y is dependent on support for changing, dressing and feeding. They are fed by tube with 12 hour overnight feeds and three feeds during the day and have been assessed for a wheelchair. Y sleeps in a travel cot in Mr and Mrs X’s bedroom.
24. In January 2022 the County Council OT completed an assessment of Y’s needs. They recommended level access to the property and garden, a ground floor accessible bedroom and level access shower. They added Y needed access to a suitable profiling bed once they had access to a suitable bedroom. In February 2022 they sent a copy to the Council’s Technical Services Department for consideration.
25. In June 2022 Mr X complained to the Council about the failure to make any progress regarding their request for adaptations. Mr X said they had phoned regularly but had not had an update. He said their child needed a specialist bed and equipment which they did not have space for. Mr X said moving was not an option as they lived near the hospital and to a specialist nursery which Y attended.
26. Later that month the Council’s Area Housing Manager visited Mr and Mrs X and provided them with a copy of the Council’s policy on disabled adaptations for Council tenants. Mrs X explained Y needed their own room with space for a specialist bed and medical equipment. The Manager advised they had sent the OT report to the Council’s medical advisers for consideration.
27. Following this in July 2022 the Manager emailed Mrs X. They advised the medical assessor had considered the OT report which advised they would benefit from an extension to meet Y’s needs. However the medical advisor advised ‘it does not appear that the current property is unsuitable, it does appear that it is unlikely to meet the long term needs of the family. Low medical priority therefore applies for future accommodation to meet [Y’s] disability’. The manager said they therefore would not give permission for an extension at this time as per the adaptations policy as:
• there will be an adverse impact on the future use of the property,
• adaptations will not be carried out where the household’s needs can reasonably be met through rehousing within a 24 month period from the date we are made aware of the assessed tenants needs and it is likely a suitable property will come up within 24 months,
• adaptations would adversely affect the Council’s ability to make the best use of stock and relet the property.
28. The manager added that extensions were very costly and can take up to two years. They advised Mrs X to apply for rehousing. Mr X contacted the Council as he was unhappy with the decision. He was concerned the Council had not considered the full OT report and supporting information provided by other professionals. The Manager advised they had received a referral from a specialist paediatric OT but had not received the OT referral from the County Council and so had requested a copy which they said would be considered. The manager reiterated that Mr and Mr X should apply for rehousing.
29. Mrs X’s support worker and the County Council OT also contacted the Council. The Manager responded and explained their view and the need to manage resources appropriately. They explained the policy was different from the Disabled Facilities Grant process for private owners where grants were mandatory. The support worker sent the Council copies of the OT assessment completed in January 2022 and a hospital letter summarising Y’s medical conditions. They added that following a recent hospital admission Y also needed additional medical equipment and also advised that Mr and Mrs X had their own medical conditions.
30. The County Council OT contacted the Council in late July 2022. They asked if the Council had considered whether the proposed extension was reasonable and practicable in line with the DFG legislation as they considered the works were necessary and appropriate to reduce moving and handling risks and to provide suitable access to essential facilities. The Council reiterated the decision was made in line with its policy and that it had to manage its resources appropriately.
31. Around this time the Council logged Mr X’s complaint of June 2022 as a formal complaint. It apologised for the delay in doing so and advised he would receive a formal response.
32. The County Council OT contacted the Council again. They advised Y could not share with a sibling due to their complex medical needs. They said it could take 24-36 months for the family to be rehoused and Y did not in the meantime have access to a suitable sleeping space or washing facilities. The OT considered the recommended adaptations were feasible and would meet Y’s long-term needs.
33. The Council emailed Mr X in late July. It advised it had reviewed its decision and remained of the view the property was not unsuitable given Y’s age. However long term it was unsuitable and therefore the family would be awarded low medical priority. The Council considered the family’s needs could be met within 24 months through rehousing. It reiterated that extensions were costly and the family should apply for rehousing.
34. The Council responded to Mr and Mrs X’s complaint in late July 2022. It considered the request for an extension was dealt with in line with its policy but it offered £50 for the delay in responding at the first stage of the complaints’ procedure. Mr and Mrs X remained unhappy and asked to go to the next stage of the Council’s complaints’ procedure. They asked whether the Council had considered the feasibility of the extension in line with the DFG legislation. The Council confirmed it would consider the complaint at the next stage of its complaints’ procedure.
35. The Council responded at the final stage of its complaints’ procedure in mid August 2022. It said the OT report was submitted initially to the Council’s Technical Services Team in February 2022. However due to staff vacancies and workload they were unable to visit at that time. It accepted there was a delay in looking at the report and Mrs X should have been informed of this and apologised.
36. It said it had since implemented a new procedure to ensure such delays did not occur in future. The new procedure meant such requests were passed to the Area Housing Manager to consider whether the request could be met from existing housing stock. It considered an alternative property could be provided within a reasonable timescale, by making an application to the Housing Register. If a suitable property could be located but needed further adaptations it said this could be discussed. Therefore a technical survey of the current property was not necessary.
37. It said it was unfortunate Mrs X had ‘received inaccurate and misleading information from a variety of sources….that the process of getting an extension for your current homme is simple and part of the Disabled Facilities Grants regime, where there are mandatory grants for adaptations to meet the needs of disabled children’. It said ‘Disabled Facilities Grants cover the private sector, this is mainly homeowners, Housing Associations, or occasionally private rented properties…Council Housing is not covered by this legislation and Councils set their own policies for disabled adaptations which will consider a number of factors’. It went on to advise Mrs X to join the housing register as soon as possible and agreed to backdate the application to March 2022.
38. It advised the Area Housing Manager made the initial referral to the Medical Adviser for a view on whether the application would get priority. It said all the information would be assessed when they applied to the housing register. It advised it had recently let a 4 bedroom house with ground floor bedroom and bathroom and hoped to rehouse people into suitable properties in a shorter time than it would take to make major adaptations. It said it was to meet with the Children’s OT Service to ensure they understood the Council’s policy. It offered £100 to acknowledge the delays in the complaint response and in Technical Services.
39. In September 2022 representatives from the Council met with the County Council OT service and Mrs X’s support worker. The Council advised it could offer financial support with a move and would backdate an application for the housing register. It was also looking to pay incentives to those under occupying properties or occupying adapted properties where the adaptations in place were not needed.
40. Also in September Mr and Mrs X joined the housing register with a banding of C1, backdated to March 2022.

Enquiry response

41. In response to our enquiries the Council has provided evidence it has let 19 four-bedroom and one five-bedroom properties in the last two years. Of these, five had a wet room. Of those five, three went to people in a higher band than Mr and Mrs X.
42. It said it has determined there will be a property available for Mr and Mrs X within a reasonable timescale. It said it has considered the cost of an extension, time it will take and the availability of existing properties. It said the increased cost of building works in the current climate and time to deliver will in most cases rule out an extension as the most appropriate option where a council has stock.

Findings

43. The County Council OT completed their assessment of the family’s needs in January 2022. This was passed to the Council’s Technical Services Department in February 2022, but no action was taken until the Area Housing Manager visited in June 2022. This delay was fault and caused Mr and Mrs X frustration.
44. The Area Housing Manager then advised Mr and Mrs X the Council would not adapt the property as this was not in line with its policy. The Council’s disabled adaptations policy makes no reference to Disabled Facilities Grants and the Council has repeatedly asserted it was not open to Mrs X to apply for one as she is a council tenant. This is fault. The law entitles council tenants to apply for a DFG in the same way as any other applicant and the Council’s policy cannot ignore a tenant’s legal rights. If the statutory test is met for a DFG, the only difference is in the way this is funded, through the Council’s own housing revenue account rather than through Government DFG grant funding. Council tenants should not be treated less favourably than other applicants for a DFG purely on the basis of funding arrangements and the Council must consider a DFG application if that is what Mrs X wants.
45. Mrs X was entitled to apply for a DFG and the Council failed to suggest or refer Mr X to its DFG process. It has failed to consider her request for adaptations in line with the criteria for a DFG: is it necessary, appropriate, reasonable, and practicable. This was fault. The County Council OT had already confirmed an extension was necessary and appropriate to meet her child’s needs. The Council has failed to consider whether it is reasonable and practicable, in line with a DFG application, to extend the property.
46. The Council suggested it could meet the family’s needs by moving them and it considered this a better use of its housing stock. I cannot comment on the Council’s management of its social housing but the Council’s view on how to manage its housing stock does not overcome Mrs X’s legal right to be considered for a DFG.
47. The Council also delayed responding to Mr and Mrs X’s complaint which added to their frustration.
48. Mr and Mrs X continue to live in a property which does not meet their child’s needs, and which also exposes them to moving and handling risks in having to carry their child up and down the stairs. The Council’s faults have led to a delay of over a year in the Council’s proper consideration of a DFG to meet their child’s needs.

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Agreed action

49. Within one month of the final decision, the Council has agreed to:
• apologise to Mrs X and pay her £750 to acknowledge the frustration and uncertainty caused by the failure to advise them or consider a DFG and to acknowledge the frustration caused by the Council’s delays.
• Offer Mrs X the opportunity to apply for a DFG and consider whether this option is reasonable and practicable, given the OT has already confirmed it is necessary and appropriate.
50. Within four months of the final decision the Council has agreed to ensure its staff are aware council tenants can apply for a DFG although this will be funded differently. It should provide evidence of this both from staff announcements, relevant policy changes and literature available for the public.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation. The Council was at fault causing injustice. It has agreed to a remedy and service improvements.

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Investigator's decision on behalf of the Ombudsman