Decision : Upheld
Decision date : 20 Sep 2023
The Ombudsman's final decision:
Summary: Mr and Mrs B complain the Council failed to properly carry out an assessment to inform a disabled facilities grant and make a decision whether to approve this. The purpose of the grant application is to fund home alterations for their three disabled children. We found the Council failed to make a decision whether to approve the grant in a timely manner. Further, the Council is at fault for a lack of communication with Mr and Mrs B in respect of the DFG process, as well as timescales. The fault identified has caused Mr and Mrs B a degree of distress and uncertainty. The Council accepted our recommendations to remedy the injustice identified.
- The complainants, who I refer to as Mr and Mrs B, are making a complaint in relation to a disabled facilities grant (DFG) application to the Council. They want a DFG to fund home alterations they say are necessary to support their three disabled children who have complex needs. In summary, Mr and Mrs B allege:
- The initial occupational therapist (OT1) who visited their home to carry out a needs assessment acted inappropriately and did not accurately assess their children’s needs or make reasonable recommendations.
- The Council agreed to instruct another occupational therapist (OT2), who completed an assessment and compiled a report with recommendations for the Council. This resulted in a formal DFG application being submitted. However, the Council has failed to make a decision whether to approve the application.
- The Council inappropriately insisted on carrying out a child assessment in accordance with Section 17 of the Children Act 1989.
- The Council’s oversight of the case has been poor due to a lack of timely information being provided. Mr and Mrs B also say the Council’s complaint handling has been poor, unhelpful and delayed.
- Following the DFG application being submitted, Mr and Mrs B later made enquiries to the Council about a second application for another of their children. They say their enquiries have been ignored by the Council which has resulted in a lack of progress being made.
- The Council does not have an established DFG policy and procedure.
- In summary, Mr and Mrs B say their family has not received DFG funding despite applying for this in November 2021. They explain this is delaying the support their family are entitled to receive. Further, Mr and Mrs B say the delay in providing their children with needed provision is causing ongoing daily stress. As a desired outcome, Mr and Mrs B want the Council to approve the DFG without further delay. They also wants the Council to be held accountable for not dealing with their application in a prompt, reliable and professional manner.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
- 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).
- 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).
How I considered this complaint
- I have read Mr and Mrs B’s complaint to the Council and Ombudsman. I have produced this report following examining relevant files and documents and interviews with the complainant and relevant employees of the Council. I have also had regard to applicable legislation, guidance and policy. I provided the complainants and Council with a confidential draft of my decision and invited their comments. The comments received were taken into account before my final decision was issued.
Background and legislative framework
Disabled facilities grant
- Disabled Facilities Grants are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996 (the 1996 Act). Councils have a statutory duty to give grants to disabled people for certain adaptations. Before approving a grant, a council must be satisfied the work is necessary, meets the disabled person’s needs, and is reasonable and practicable.
- The maximum amount of a grant is £30,000. Other discretionary help can be awarded if the council thinks it is necessary. The amount a council will pay for a mandatory grant is generally subject to a means test. However, if the DGF is for meeting the needs of a child under 19, no contribution is needed from the applicant. Under the Regulatory Reform Order (another part of the DFG legislation) a council can make an additional award.
- The applicant should get the grant approved before starting any work. A council can approve a grant if the work has already started or it might only approve a grant for those elements of the work which started after it approved the grant. The council will not approve a grant if the work has already been completed
Guidance and key stages to delivering adaptations
- ‘Disabled Facilities Grant (DFG) delivery: Guidance for local authorities in England’ (2022) is government guidance. This provides advice to councils in England on how they can effectively and efficiently deliver DFG funded adaptations to best serve the needs of local older and disabled people. It brings together and sets out in one place existing policy frameworks, legislative duties and powers, together with recommended best practice, to help councils provide an adaptation service to disabled tenants and residents in their area. The guidance also identifies five key stages to delivering home adaptations:
- Stage 1: First contact with the service. Councils should ensure the public has access to information and advice about the DFG process.
- Stage 2: First contact to assessment and identification of the relevant works. An occupational therapist (OT) will assess the person’s needs and potential solutions through home adaptations.
- Stage 3: Identification of the relevant works to submission of the formal grant application. The person completes and submits the application form together with designs and costing for the works (where necessary).
- Stage 4: Grant application to grant decision. The Council will check the application and issue a decision letter. If a council refuses a grant, it must explain why.
- Stage 5: Approval of grant to completion of works. The works are arranged and carried out and the necessary quality checks made.
- Councils should decide a grant application as soon as reasonably practicable. In addition, the timescales for moving through the stages will depend on the urgency and complexity of the works required. The Guidance (2022) gives the following timescales councils should consider from Stages 1 to 5 (as above):
- Urgent and simple works: 55 working days
- Non-urgent and simple works:130 working days
- Urgent and complex works: 130 days
- Non-urgent and complex works: 180 working days
- Once the work is complete, councils must pay the grant in full within 12 months of the application date. We expect councils to consider whether interim equipment or temporary works should be provided when it will take them a long time to secure a permanent solution.
- The Children Act 1989 requires councils to safeguard and promote the welfare of ‘children in need’ (CIN) in their area, including disabled children, by providing appropriate services for them. A CIN is defined in law as “a child who is unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significantly or further impaired, without the provision of services, or a child who is disabled”.
- Section 2 of the Chronically Sick and Disabled Person’s Act (CSDPA) 1970, requires councils, when undertaking an assessment of a child under s17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in Section 2, such as:
- assistance in the home such as home-based short breaks or home alterations.
- recreational and educational facilities including community based short breaks.
- travel and other assistance.
- ‘Working together to safeguard children’ (2018) is statutory guidance on inter-agency working to safeguard and promote the welfare of children. The expectation of this guidance is that a s17 assessment which identifies significant needs will generally lead to the provision of services, but it not the case that there is a duty to meet every assessed need. Similarly, a parent may decline an assessment. Whether a service is required is dependent on the nature and extent of the need assessed and the consequences of not providing a service. Councils may use eligibility criteria and take into account their available resources.
- Where a council is satisfied it is ‘necessary’ to provide support services under Section 2 of the CSDPA then services must be provided regardless of the council’s resources. Assessments should take account of the needs of the whole family. While some services may be offered directly to the disabled child, services may also be offered under section 17 to parents or siblings. There is therefore an overlap in assessing need and provision councils provide under a DFG and s17.
Chronology of events
- In November 2021, Mr and Mrs B made an enquiry to the Council relating to a DFG to make home alterations. They assumed they had made a formal application, though it was later clarified by the Council that a needs assessment would need to be completed before the application is formally made. Within one-week, OT1 contacted the family to provide advice in relation to DFG eligibility and arrange a home assessment.
- In December 2021, OT1 visited Mr and Mrs B’s family home to assess the needs of X, Y and Z and make recommendations. Mr and Mrs B made complaints to the Council about how this assessment was carried out, as well as OT1’s report.
- In January 2022, OT1 wrote to Mr and Mrs B to advise that the works they proposed could not be covered using a DFG. OT1 suggested other provision she considered would be suitable. Not satisfied with how the Council had dealt with their concerns, Mr and Mrs B later made a formal complaint.
- In June 2022, the Council provided its final response to Mr and Mrs B. It agreed to fund another OT2 to carry out an assessment, though maintained the findings of OT1 following the initial needs assessment.
- In August 2022, OT2 complied a report of their assessment which was provided to the Council to inform the DFG application.
- In mid-October 2022, a DFG application was submitted by the Council for one of Mr and Mrs B’s children (X). The Council said the next action would be to assign an officer to the case to make a decision. It said that due to high demand there is a current waiting time of approximately three to six months before the Council could engage to further understand or comment on the application. The Council is yet to a formal decision on the DFG application.
- In late October 2022, Mr and Mrs B made an enquiry to the Council about DFG funding to make home alterations in respect of another of their children (Y). The Council declined to accept another application.
Complaint outcome a): OT1’s home assessment of needs and allegations of inappropriate and poor conduct
- Following OT1’s assessment of X, Y and Z, an email was sent to Mr and Mrs B to advise that ‘sensory rooms’ do not fall under any of the ‘relevant works’ set out under s23 of the 1996 Act and so could not be covered using a DFG. This was inaccurate advice as there are recognised circumstances where an additional bedroom or space (by reason of sensory needs) can be met under the 1996 Act.
- I found the Guidance (2022) outlines information relevant to autism and behaviours that present challenges. In particular, it sets out circumstances where behaviours threaten the safety of others living within the household. For example, where siblings share a bedroom and there is the threat of harm during the night, then creating a separate bedroom is consistent with s23(1)(b) of ‘making the dwelling safe for the disabled occupant and other persons residing with him’. Further, a DFG could also be used to create a safe space for a person who is likely to injure themselves. Though the Council was at fault in giving this advice, it does not undermine OT1's assessment of X, Y and Z’s needs. This was a legal question not relevant to the assessed needs. Ultimately, any works would need to be assessed as being necessary and appropriate to meeting those needs.
- Following the email from OT1, Mr and Mrs B made a complaint to the Council which expressed a number of concerns in relation to how the assessment was conducted. I do not propose to outline each of the specific concerns raised and provide an assessment of these. There are practical limitations around what I can reasonably investigate and form a judgement about. I was not present at the assessment and the accounts of Mr and Mrs B and OT1 about what happened and was discussed vary dramatically. There is not enough evidence to make a robust finding which can be relied upon. Further, as the DFG application is yet to be decided, any injustice rising from the assessment, or otherwise, is speculative.
- In any event, the Council agreed for another home assessment using an independent OT. This is because Mr and Mrs B say the flawed assessment process resulted in a flawed report. I have read OT1’s formal report which provides an assessment of X, Y and Z’s needs. The Guidance (2022) states assessments should identify any proposed home alterations and the person’s needs. It should also evaluate whether the adaptations are necessary, reasonable and appropriate in meeting those needs. The assessment should be person focussed and, where appropriate, supervised by a specialist OT. In the case of disabled children, the process should consider the developmental needs of the child and their progress towards maximum independence, as well as the needs and views of their parents. Broadly, the report by OT1 is consistent with these established guidelines and best practice principals.
- I am however persuaded by Mr and Mrs B’s point that some of the language used in OT1’s report is not professionally acceptable. This is particularly the case in the context of the report comparing how X, Y and Z’s autism displays to other autistic children. This was outside the scope of OT1’s role as the needs of others are not relevant considerations. The Council was at fault in this respect. Through discussions, the Council has accepted that some of the language contained in OT1’s report was inappropriate and acknowledges this would have been upsetting for Mr and Mrs B. I consider the fault resulted in an injustice to Mr and Mrs B on that basis. The Council has agreed to not use OT1’s assessment of X, Y and Z’s needs to make a decision for the DFG application. This means the application will be decided using only OT2’s report and recommendations.
Complaint outcome b) Inappropriate insistence of by the Council in carrying out a s17 single assessment
- It is alleged the Council acted inappropriately in trying to carry out a s17 assessment in relation to X, Y and Z. The Council has a legal duty to identify children, including those with disabilities, in its area who could be considered as a CIN. Once identified (usually by carrying out a single assessment), the Council must provide the child with appropriate services. This can include financial assistance to a child or family and the courts have said the functions of a council under s17 of the Act can extend to providing major adaptations to a child’s home.
- Importantly, a s17 assessment is separate and distinct from a child protection investigation and is targeted at supporting children with complex needs. Mr and Mrs B made an application for a DFG to the Council and have set out the various needs of X, Y and Z which they say need to be supported. In my view, a s17 assessment is relevant in these circumstances and there was no fault by the Council in considering and proposing this option. As said, the Council has a legal duty to identify, assess and provide appropriate support.
Complaint outcome c) Delay in deciding to approve a DFG and acting on the recommendations of OT2
- The Council’s timeliness to progress Mr and Mrs B’s enquiries and application is far below the Guidance (2022) standards and what I would expect of an acceptable service. Prior to my investigation, I have seen no assessment by the Council in terms of the urgency and complexity of the works proposed. The Council should make this judgement to inform timely progression of the case in accordance with priority need. At most, the Guidance (2022) states a DFG application should be assessed by the Council and a decision made whether to approve it within 20 working days.
- The Council received OT2’s report in August 2022 and submitted a DFG application for one of Mr and Mrs B’s children (X) in October 2022 on their behalf. Because of the fault identified concerning OT1’s report, this caused a delay in the application being submitted. Had OT1’s report been suitable for use, I consider the application should have been submitted by no later than the beginning of February 2022. This means, in line with best practice guidance, a decision should have been made by March 2022. The Council is yet to make a decision on whether to approve the DFG application and so there has been a serious delay in this respect. Moreover, the Council apologised for the lack of communication to Mr and Mrs B in relation to timescales. I cannot however decide whether the DFG application should be approved, but the evidence shows clear service failure and fault by the Council in respect of progressing the DFG application.
- Further, the provision of clear, concise, easy to understand and readily accessible information is a vital aspect of providing a good service. From the time OT2 completed their assessment and the investigation of this complaint, there is a an absence of evidence that Mr and Mrs B were informed of next steps. This includes when they should expect a response and contact details to follow up in the event of delay. I found there has been a lack of clear communication by the Council in providing Mr and Mrs B with updates and working in partnership with them in respect the DFG application itself and the process. This is fault by the Council and I consider Mr and Mrs B have suffered a degree of distress.
Complaint outcome d): Second DFG application proposed
- In relation to Mr and Mrs B’s proposal to make another DFG application to the Council for another of their children (Y), the Council told me this problem has since been resolved. The Council said Mr B was advised in early May 2023 during a home visit that the request would not be considered on the grounds an application had already been submitted. I do not accept the Council’s position and I have spoken to Mr B about this point who denies being advised this. He has also provided me copies of emails sent by the Council officer who visited Mr B on the date in question. The Officer sent Mr B an email to give an overview of what was discussed and to set out options for the proposed home alteration works. This makes no reference to Mr and Mrs B’s proposals for another application.
- Further, the Council’s reason for rejecting to take another application is flawed. The DFG application made and the one proposed relate to two different children with varying needs. Mr and Mrs B are entitled to make another application and have this assessed on its own merits. The initial refusal was therefore subject to fault which has had the effect of causing further uncertainty. In any event, Mr and Mrs B have now expressed they wish for any further application to be placed on hold. This does not however limit the fault and injustice identified.
Complaint outcome e): Poor complaint handling
- I have reviewed the Council’s complaint records and I found there were delays in it providing formal responses to Mr and Mrs B’s concerns. This was fault and the Council has apologised for this. However, I do not consider the fault has caused a delay in the Council approving a DFG because an application had not yet been made at this point. Moreover, the process of appointing OT2 to make another assessment was not due to any fault by the Council. It was to accommodate Mr and Mrs B’s wishes following their dissatisfaction with OT1 and the initial assessment. There is no evidence of the Council’s complaint handling being prejudicial to the timeliness in progressing the DFG to a considered decision. I do however consider the fault has aggravated the general anxiety and uncertainty of Mr and Mrs B surrounding the process and lack of timely information.
Complaint outcome e): Lack of DFG policy
- The Council is free to decide its own policies and procedures through the general power to provide DFG assistance. The Council initially told me it does not currently have a DFG policy and this is currently being written and is expected to be implemented imminently. However, the Council later clarified it does have a DFG policy and has provided me with a copy of this. I see no evidence the policy is accessible to the Council service users, or that it was provided to Mr and Mrs B from the outset. The Government has only recently provided the Guidance (2022) to inform local authority policy considerations which is in progress. I do not find fault by the Council given it is in the process of policy transitioning. However, this does not justify the identified service failings in this area and the Council’s general failure to adhere to principles of good administrative practice. The Council did not appropriately consult with Mr and Mrs B since the assessment by OT2, nor has it provided them with a clear process or framework by which they can manage their expectations against. As I understand from Mr B, the Council has engaged with the family more in relation to the DFG since the Ombudsman’s investigation.
- To remedy the fault and injustice identified, the Council will perform the following actions within one month of my final decision statement:
- The Council will provide a written apology to Mr and Mrs B which acknowledges the fault and injustice identified in this statement. The letter will also provide Mr and Mrs B with the name and contact details of a single point of contact (SPC) at the Council to be used for the duration of the DFG process. The SPC will work with them on the already made application and any other application proposed by Mr and Mrs B.
- The Council will pay Mr and Mrs B £400 to serve as an acknowledgement of the overall injustice they have suffered, as outlined in this statement.
- The Council’s SPC will arrange and hold a telephone meeting with Mr and Mrs B to review the progress and information gathered so far and take account of any additional queries or information they have or wish to provide at this stage. This applies to the DFG application already submitted. The SPC will write to Mr and Mrs B confirming their discussions, clarifying any outstanding queries and outlining the next steps and any agreed actions to be carried out, and by when. If Mr and Mrs B wish to make a further DFG, the Council will provide them with an application form and process this in the normal way, consistent with the 2022 Guidance.
- The Council will make a decision on the DFG application made so far and will progress any other DFG queries to application without further delay. The Council will consider prioritising any second DFG application. The Council will provide Mr and Mrs B with regular written updates on these, as well as necessary information which is consistent with the Guidance (2022) and its own established policy and procedure once this has been implemented.
- The Council will decide the submitted DFG application using the report of OT2. It will also make a note on its systems and on OT1’s report that the assessment and report by OT1 is not to be considered for the purposes of the DFG application.
- In addition, the Council will perform the following actions within six months of my final decision statement:
- At a senior level, the Council will review the number of outstanding DFG applications it is yet to allocate to an officer for a decision. The Council will produce a plan to address the backlog and action enquiries and applications through key stages in a timely manner and consistent with best practice.
- The Council will provide us with evidence it has complied with the above actions.
- The complaint is upheld. I found the Council failed to make a decision about Mr and Mrs B’s submitted application, as well as their enquiries in a timely manner. Further, the Council is at fault for a lack of communication with Mrs and Mrs B in respect of the DFG process, as well as timescales. The fault identified has caused Mr and Mrs B a degree of distress and uncertainty. The Council has agreed to my recommendations to remedy the injustice identified.
Investigator's decision on behalf of the Ombudsman