Summary: Mr X complained about the Council’s handling of his application for a Disabled Facilities Grant for a driveway at his home. We have found fault in the way the Council made its decision to refuse Mr X’s application for a grant, causing injustice. The Council has agreed to remedy this by apologising to Mr X, making a payment to reflect the upset caused, offering him a review of its decision and making service improvements.

The complaint

1. The complainant, who I am calling Mr X, complains about the Council’s handling of his application for a Disabled Facilities Grant for a driveway at his home to facilitate access to his car.
2. Mr X says the Council failed to consider his application properly. He wants it to re-consider it correctly.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke to Mr X, made enquiries of the Council, and read the information Mr X and the Council provided about the complaint.
7. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Disabled Facilities Grants

8. Disabled Facilities Grants (DFGs) 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. Before approving a grant, a council must be satisfied the work:

• is necessary;
• meets the disabled person’s needs; and
• is reasonable and practicable.

9. A council should decide a grant application as soon as reasonably practicable. This must be within six months of the application. If a council refuses a grant, it must explain why. Once the work is complete, the council must pay the grant in full within 12 months of the application date.

The Council’s Independent Living Assistance Policy

10. Applications to the Council for DFGs are handled by its Community Connections team. Livewell Southwest (Livewell) complete the occupational therapy assessments for applications.
11. The Council’s policy says:

• All DFG applications must meet the relevant requirements in the legislation. The works requested must be deemed as being “necessary and appropriate” and “reasonable and practicable”.
• It has commissioned Livewell to determine what is “necessary and appropriate” on its behalf;
• By law, it must consider and make determinations on applications within 6 months of receipt;
• Where it is likely to refuse an application, it will contact the applicant, where applicable, to give them the opportunity to provide additional information which may affect the decision before a formal refusal is made;
• Where it has no option but to refuse an application it will advise the applicant of the reasons for the refusal; and
• An applicant has the right to a review of a refusal decision. This must be requested in writing to the Council’s Community Connections service director within 28 days of the refusal letter.

What happened

Background

12. I have set out a summary of the key events below. It is not meant to show everything that happened.
13. Mr X has a disability. An Occupational Therapist (OT) with Livewell assessed his mobility issues in 2020 and said:

• Mr X struggled with his mobility and could not walk long distances;
• He was not always able to find a parking space for his car near his home;
• He had a mobility scooter but had to carry this up and down a number of steps from his home to the road before being able to use it; and
• These problems could be addressed by a DFG application for the construction of a driveway in his front garden.

Mr X’s DFG application

14. Mr X applied to the Council for a DFG for the installation of a driveway in his front garden, with access onto the road. His social landlord’s consent was needed because he lived in rented accommodation.
15. In November 2021, one of the landlord’s technical officers told the Council:

• There were seven steps down from the road down to Mr X’s front garden. The landlord’s policy did not allow for approval of requests for driveways where there were this number of steps; and
• Having visited Mr X’s home, he was not sure it would be feasible to create a driveway because of the drop down from the road to the garden, service access in the garden and its location on a corner in the road.

16. I understand another of the landlord’s officers then visited Mr X’s home and indicated it would be possible to construct a driveway in his garden onto the road.
17. Mr X’s landlord told the Council in December 2021:

• Mr X’s property was not suitable for this adaption under its policy; but
• If an access ramp could be made to a compliant gradient and standard, it would give its approval for this (subject to some conditions).

January 2022: feasibility report

18. In January 2022, officers from the Council’s Community Connections team together with the OT who had assessed Mr X’s needs met with him at his home to consider the feasibility of constructing the driveway, together with storage for his mobility scooter. The officers’ feasibility report of the visit said:

• The OT confirmed Mr X was currently able to manage the steps down from his front door and the steps from his garden up to the road. He did not meet the criteria for needing a powered wheelchair. But he wanted the driveway, because there is a lot of parking in the road, and he could not park his car outside his house.
• Mr X did not want to go ahead with an application just for the construction of a scooter ramp.
• The Council would decline the application. This was because Mr X was currently managing access independently, the offer of a ramp would meet his requirements to get in and out of his home and the work was not deemed necessary.

19. The Council notified Mr X of its decision on 21 January 2022. It said it had reviewed his application for a driveway following its visit to his home but had declined the request. It attached the feasibility report.

Contact about the Council’s decision

20. Mr X asked his MP for help. In its response to Mr X’s MP, the Council said:

• The OT had had stated Mr X was currently able to manage the steps from his home to the garden and the road independently;
• He had been offered, but declined, a ramp to meet his only assessed need of not being able to carry his scooter up and down steps on his own; and
• If Mr X felt a driveway was required to meet his needs he should ask the OT for a re-assessment. He could also ask his GP to confirm whether he was dependent on his car and mobility scooter and his need for adequate access onto the street.

21. The OT told the Council her previous referral for Mr X was specific. It had set out her clinical reasoning about Mr X’s disability issues and needs. And it had confirmed why she considered it appropriate and necessary to provide him with suitable access to and from his property to his vehicle to reduce his risk of falling on the steps or while walking the distance to his car.

May 2022: further consideration of Mr X’s application

22. The Community Connections team discussed Mr X’s case again. They considered:

• The OT’s updated referral stated it was both necessary and appropriate to enable Mr X to access his community. This could be achieved, and his needs met, by the construction of a driveway; and
• There should be a feasibility visit to consider whether the reasonable and practicable elements of the case could be satisfied.

23. But the team also said:

• The OT’s referral was basically the same as previously submitted and said Mr X was currently managing the steps. The only issue was about him being unable to carry his scooter up to the road or to car. A ramp would alleviate this; and
• Mr X had already been offered, and turned down, a ramp for his scooter.

24. The OT re-submitted Mr X’s application for a driveway. This was supported by the OT’s original referral together with evidence about:

• Mr X’s difficulty getting his scooter from his house to the road;
• the major impact on his mobility, his dependence on his mobility scooter and car and need for adequate access for them on his street (from Mr X’s GP); and
• the parking issues in the street.

June 2022: case conference

25. The Council held a case conference to consider Mr X’s application. The notes of the meeting - attended by the Community Connections team officer, Mr X’s OT, the OT’s manager and the landlord’s technical officer - said:

• They looked at street views showing the access from the road to Mr X’s home;
• It was agreed the problem was mainly the fact that Mr X could not park his car near his home;
• They discussed how a driveway would fit in the front garden. If the driveway was level with the road, to make getting out of the car easier, Mr X would need a further ramp to get to his front door. To reduce the need for this ramp, the driveway would have to slope downwards which would make getting out of the car more difficult;
• Mr X had been offered a ramp to enable him to manage the access from his garden up to the road. He could then ride on his scooter to where his car was parked. This ramp would meet his need regarding carrying his scooter up and down steps; and
• The OT’s manager said, after listening to all the points raised, they did not feel they could medically support the application for a driveway because a ramp would meet Mr X’s prescribed need.

August 2022: notification of the Council’s decision

26. The Council notified Mr X of its decision. It said:

• Following a feasibility visit on 13 January and its letter of 21 January, it had concluded a driveway at the front of his property was not necessary and his assessed needs would be met by installing a ramp;
• In accordance with the law, it would not approve a DFG unless it was satisfied the work was necessary to meet the needs of the disabled occupant, and it was reasonable and practicable to carry out the work having regard to the age and condition of the property;
• The OT had said he could manage the steps down from his front door and steps up to street with a walking stick although this impacted his fatigue and risk of falling; and
• If Mr X was unhappy, felt the Council had done something wrong or failed to do something, he could complain. It enclosed information about the Council’s complaints procedure.

Mr X’s complaint

27. Mr X complained to the Council about its August decision.
28. In its complaint responses the Council said:

• The OT had to determine whether an adaptation was necessary and appropriate. A technical officer would then decide whether the proposal was reasonable and practicable;
• Mr X did not meet the criteria for a powered wheelchair. He had bought the mobility scooter privately;
• An OT had stated the ramp offered would meet Mr X’s clinical needs. As such it was deemed to be the viable option in his case; and
• Hardstanding was not eligible for DFG funding and was not considered necessary and appropriate to meet his assessed needs.

29. Mr X was unhappy with this response and brought his complaint to us.

My analysis – was there fault by the Council causing injustice?

Our role

30. Our role here is to review how the council made its decision to refuse Mr X’s application for a grant for the construction of a driveway.
31. We may criticise a council if (for example) it has not followed an appropriate procedure, not considered relevant information, or failed to properly explain a decision it has made. We call this ‘fault’, and where we find it, we can consider the consequences of the fault and ask the council to address these.
32. But we do not make decisions on councils’ behalf, and we do not provide a right of appeal against contested decisions.

Opportunity to provide additional information

33. The Council’s policy says, where applicable, it will give an applicant the opportunity to provide any relevant additional information before it makes a formal decision to refuse an application.
34. I have not seen any evidence the Council gave Mr X this opportunity before telling him, on 21 January, it had refused his application. I note it had a meeting at his home before making this decision. But based on what I’ve seen, this appears to have been arranged to assist the Council with its enquiries and not as an opportunity for Mr X to provide additional information.
35. In my view, it also failed to give Mr X this opportunity before notifying him in August of its decision to refuse his application. He was not able to comment on the views expressed at the meeting about the practical difficulties with constructing a driveway and the OT’s manager’s decision a driveway was not necessary to meet his assessed need, which was a significant change from the previous OT assessment.
36. I consider this was fault by the Council.

Explaining the Council’s reasons for refusing the application

37. The policy also says the Council will advise an applicant of the reasons for refusing an application.
38. In my view, both the notification letters in January and August, and the response to the MP failed to clearly explain the Council’s reasons for refusal:

• The January letter did not state the reasons but merely attached the feasibility report. I do not consider this was an adequate way of advising Mr X of the Council’s reasons for refusal:
• The Council’s response to Mr X’s MP referred only to its offer of a ramp and did not explain why it had refused his request for a driveway. It also wrongly said his only assessed need was not being able to carry his scooter up and down steps on his own, when the OT had said he needed easy access to his car; and
• Its August letter again focused on a ramp for Mr X’s scooter and did not properly explain why it had refused his request for a driveway.

Mr X’s right to request a review

39. An applicant has the right, under the Council’s policy, to ask for a review of a refusal decision.
40. The January notification letter did not inform Mr X about this right. And although the August notification letter told Mr X he could complain if he was unhappy about the decision, again it did not advise him about his review rights or the time limit for requesting a review.
41. I consider this was fault by the Council.

The Council’s reasons for refusing Mr X’s application

42. I am not able to comment on the merits of the Council’s decision to refuse his application for a driveway. But I consider some of the reasons it gave for this decision, in its notes and records and letters, were misleading and contradictory, particularly regarding the OT’s assessment.
43. The OT’s original assessment in 2020, which she confirmed again in 2021 and 2022 assessed Ms X’s ability to manage the steps up and down to his home and the road but specifically referred to:

• his difficulties parking his car immediately outside of his home;
• his reduced ability to walk any great distance, and fatigue increasing his risk of falls;
• The issues with parking and restrictions on using his mobility scooter were negatively affecting Mr X’s well-being. He would only use his car in the evening when he knew he could secure a space near his home. This restricted his independence in accessing the community and visiting family; and
• The recommendation his front garden be adapted to a driveway with space to store his scooter.

44. The OT had clearly assessed Mr X as having a need for easy access to his car and that this need should be met by a driveway allowing him to park his car in front of his home.
45. In May when reconsidering Mr X’s application the Council said:

• The OT’’s updated referral stated it was both necessary and appropriate to enable Mr X to access his community by the construction of a driveway; and
• The OT’s referral was basically the same as previously submitted. Mr X was currently managing the steps and his only issue was being unable to carry his scooter up to the road or to car.

46. I think this was misleading and contradictory. It suggests there had been a change to the OT’s assessment a driveway was needed, when this is what the OT had said from the outset. It then says there had been no change the referral.
47. And the references to Mr X being able to manage the steps are also misleading. This was never the issue. The difficulty was then having to walk some distance along the road to access his car.
48. And the Council then appears to have overridden the OT’s determination a driveway was necessary and appropriate to meet Mr X’s assessed need of easy access to his car.
49. Rather than simply then determining, as it was required to do in accordance with its policy, whether it was “reasonable and practicable” to construct a driveway, it seems to have substituted its own assessment that Mr X did not have a need for easy access to his car, but only for a way of getting his scooter up and down the steps.
50. The Council also referred to Mr X not meeting the criteria for a powered wheelchair, and hardstanding not being eligible for DFG as further reasons for refusing the application without setting out the basis for this reasoning. It does not appear to have considered the issue of the landlord’s consent for the construction of a driveway.
51. Finally, at the case conference, the OT’s manager overruled the OT’s assessment that Mr X’s need for easy access to his car should be met by a driveway. They determined this need could be met by a ramp allowing Mr X to use his scooter to get to his car if was parked some distance away from his home. This change in Mr X’s OT assessment was not explained to him nor was he given the opportunity to address this.
52. In my view, for the reasons set out above, there was fault in the way the Council made its decision to refuse Mr X’s application for a grant for a driveway.

Impact of the Council’s faults

53. I consider, because of these failures, Mr X has lost the opportunity to have his application properly considered and reviewed, in accordance with the Council’s published process.
54. In my view, all of this has caused Mr X upset and frustration, together with additional distress due to the uncertainty about whether the outcome might have been different had the process been followed properly. And time and trouble bringing his complaint to us.

Agreed action

55. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr X for its failure to properly consider and review his application for a DFG for a driveway. The apology should reflect the principles about making an effective apology set out here Guidance on remedies - Local Government and Social Care Ombudsman in in our published Guidance on Remedies;
2. pay Mr X £250 to reflect the upset and frustration caused by this failure and his time and trouble bringing his complaint to us. This is a symbolic amount based on our published Guidance on Remedies; and
3. provide Mr X with a clear explanation of its reasons for refusing his application in August 2022 and offer him the opportunity to request a review of this decision and provide any additional evidence in support of his request.
56. Within three months from the date of our final decision, the Council has agreed to review:
1. its guidance to officers about complying with its policy and process for considering and deciding DFG applications; and
2. the form of its letters to applicants notifying them of decisions about their DFG application, the reasons for a refusal and their review rights.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have found fault by the Council causing injustice. I have completed my decision on the basis the Council will complete the above actions as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman