Summary: Mr X complained about the way the Council processed his application for a grant to replace windows in the house where his autistic son lives. We found fault because the Council failed to consider his application properly and explain its decisions fully. To remedy the injustice caused by these faults, the Council has agreed to apologise to Mr X, re-assess his application and share information with relevant officers.

The complaint

1. Mr X complains the Council has not considered relevant guidance and information when assessing his Disabled Facilities Grant (DFG) application for replacement windows to his home. He also complains the Council failed to consider his son’s health and safety as part of the assessment process.
2. Mr X says the existing windows are causing damp and mould in the property which is affecting the health, safety and wellbeing of his autistic son. He says the Council’s refusal to grant a DFG is causing the family stress and anxiety.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Relevant law and policy

The Housing Grants, Construction and Regeneration Act 1996

8. Under the Housing Grants, Construction and Regeneration Act 1996 (the Act), councils can award DFGs to people whose disability means their home needs adaptation. If the person applying meets the qualifying criteria, the council must award the grant.
9. Councils only approve grants for work they decide is necessary. An occupational therapist usually assesses need. Grants for children are not means tested.
10. A council must decide if the proposed works are necessary and appropriate to meet the needs of the disabled person. It must also be satisfied it is reasonable and practicable to carry out the works given the condition of the property to be adapted.
11. Section 23(1)(b) of the Act states that DFGs must be given to make a dwelling or building safe for the disabled occupant and others living there with them, subject to the other provisions set out in the Act.

The Council’s policy

12. The Council has a Private Housing Health Assistance Policy (the Policy). As part of this policy, the Council offers discretionary assistance in the form of Housing Assistance Grants (HAGs). “Safe, Warm and Well” is one of the HAGs offered under the Policy.
13. Amongst other conditions, Safe, Warm and Well:
• is discretionary;
• can assist those (including children and younger adults) with chronic or severe health conditions, for example asthma, who are affected by poor housing conditions; and
• is designed to assist with an immediate remedy, not necessarily to reduce long-term maintenance costs.

What happened

14. Mr X has a son, Y, who has a diagnosis of autism. Y is a young boy who is non-verbal, has little awareness of danger and shows behavioural difficulties such as banging his head on walls. Mr X says Y likes to walk along and sit at windowsills.
15. Mr X purchased his home in the middle of January 2022.
16. Early in February 2022, Mr X applied to the Council for a DFG. He advised the Council his son had a disability and that the windows and doors of his house were old and in very poor condition. Mr X said they needed to be replaced “urgently to improve the heating so that it is suitable for my child.”
17. Later in February 2022, the Council sent an Occupational Therapist (OT) to carry out an assessment at the house. At some point after this, it appears that the Council declined to assist Mr X further although this has not been included in the chronology it sent me.
18. In mid-July 2022, Mr X contacted the Council again to ask for an OT assessment for Y as he was concerned for Y’s safety. He did not feel Y’s needs had been fully understood on the previous visit. Mr X said:
• his son had little awareness of danger;
• was opening the windows; and
• mould was building up inside the house.
19. The Council advised it would “need to clarify whether a DFG would support provision of windows (and) explained that any DFG funding would be pending an OT assessment of Y’s needs.”
20. Shortly after this, the Council also sent Mr X guidance on buying window locks and restrictors. It confirmed it would re-assess Y.
21. The Council completed a re-assessment by a different OT at the beginning of August 2022.
22. Towards the middle of August 2022, the Council advised Mr X a wet room with level access shower had been approved but that it would update him regarding the windows.
23. Mr X chased a response from the Council at the end of the first week in September 2022. He complained the panel of Council officers (the Panel) who assess applications would have met twice since the visit. He had heard nothing despite it being five weeks since the re-assessment visit and wanted to know when the Panel would assess his application.
24. The Council responded to advise the last panel had met mid-August 2022 and that his case needed to be reviewed before it could be sent to the Panel and apologised for the delay. The Council advised the OT dealing with his case was on annual leave and would return to work mid-September.
25. The Council contacted Mr X in mid-September to advise his request for a DFG to replace his windows had been declined. It said:
• window locks were likely to be suitable to increase Y’s safety, therefore meeting the safety element of the DFG; and
• mould in the property would need to meet a threshold in order to be eligible for the “Safe, Warm and Well” element of the Council’s HAG policy.
26. Later in September 2022, Mr X then complained to the Council that his application had been denied and that he would like the decision reconsidered. He believed replacement of the windows was necessary and appropriate (in line with DFG guidance) to make the property safe for Y.
27. At the beginning of October 2022, the Council discussed Mr X’s case at its Adaptation Appeals Panel Meeting. The Panel upheld the decision to decline the DFG application for replacement windows.
28. Mr X then complained to the Council about the refusal. In its response, the Council said:
• it was aware of the issues raised regarding the condition of the windows and that his son’s safety had been discussed with him but that with “respect to these issues … these are not factors that are covered under the DFG legislation.”;
• that it had offered to fit window locks but that he was unhappy with this proposal;
• that Mr X would have been aware of the condition of the windows before the house purchase; and
• it would not reverse the decision to refuse a DFG.
29. Mr X then complained to the Ombudsman.

Analysis

The second OT assessment

30. The second OT assessment carried out in August 2022 confirmed that one of the living room windows could not be shut properly and that mould and damp was present in Mr X’s bedroom.
31. After this second visit, the Council emailed him an informal response in mid-September 2022 advising that window locks would be enough to satisfy the safety element of the DFG legislation. It said that mould in the property would need to “meet the threshold outlined by the Housing Health and Safety rating system and serious category 2 hazards as determined by the Housing Act 2004 which affects the ability of the property to be safe, wind and weatherproof.”
32. Whilst the Council is entitled to conclude that window locks would be enough to satisfy the safety element of the DFG, it invited Mr X to discuss the email further, but provided no detail on how or why it had reached this decision or what the threshold rating system meant or entailed.
33. In the response offered, it appears the threshold section relating to mould was copied and pasted from the Council’s Policy, specifically from the Safe, Warm and Well section. This, however, was not made clear. It does not appear that any clarification was given to Mr X about the rating system or what this meant in real terms.
34. Further to this, “Safe, Warm and Well” relates to chronic health conditions. The Council made no mention of whether it was aware if Y had any such conditions.
35. This lack of clarity and proper explanation is fault. The Ombudsman’s guidance on Principles of Good Administrative Practice outlines the need for councils to be service user focused and be clear and accountable. I consider, that in this instance, the Council failed to adequately explain its rationale which is likely to have left Mr X frustrated and confused. I have made a recommendation below to remedy this injustice.

Complaint about the refusal

36. Mr X then complained to the Council in September about its decision to decline his application, he listed several reasons why he felt the decision was wrong. He included an excerpt from a surveyor’s report about the condition of the windows from before the time he bought the property.
37. The Council then considered Mr X’s case before the Panel and once again declined to give a DFG or assist under its Policy. The Panel minutes confirmed:
• replacement windows were not generally covered by the DFG legislation;
• that an assessment was then carried out under the Council’s HAG guidance instead;
• Y was not known to have any underlying respiratory conditions;
• that Mr X would have known about the condition of the windows as they were in poor repair before he bought the property; and
• the Council discussed the application with an outside information and guidance service who also confirmed replacement windows were not covered under DFG legislation.
38. I have read the Council’s Policy. It would appear the Council declined any assistance under the HAG scheme as Y is not diagnosed with any chronic or severe health condition as outlined in the policy guidelines above. The Council has provided no evidence in its chronology of explaining this to Mr X or if it did, when it did. This lack of clarity is fault. I have made a recommendation below to remedy this injustice.
39. The Panel minutes confirm it had viewed pictures Mr X had sent in of the windows. There appears, however, to have been little or no discussion about the window not shutting properly, only that information about the original refusal had been considered.
40. I consider that this is likely not to have been properly discussed as the Council believes replacement of windows is not something which can be considered under the DFG legislation. Although the panel minutes state that it is not ‘generally’ considered, the Council’s stance in all other aspects appears to be that it does not believe it can consider windows at all under DFG legislation.
41. The legislation is clear in that items which relate to the safety of the disabled occupant can be considered. In relation to Y’s safety and given the behaviours associated with his disability, the Council should have considered as part of its decision-making process:
• whether one window not shutting potentially affects the safety of the occupant;
• if the suggestion of a lock was suitable in terms of fire safety as highlighted by Mr X; and
• have evidenced its rationale.
42. As the Council had taken the stance from the outset that replacing windows was not covered, I find that there is therefore no evidence to show that this was properly considered as part of the Panel’s process.

After the Panel

43. Mr X complained to the Council again after the Panel declined his DFG application.
44. The Council’s stance and application of DFG legislation again appears confused. That Mr X would have known about the condition of the windows prior to purchase is not a consideration under DFG legislation.
45. As part of my enquiries, I asked the Council to provide evidence it had considered Section 23(1)(b) of the Act. In response, the Council sent a single document with a copy of the relevant section of legislation pasted into it and a statement that all areas had been taken into consideration and the safety of the child considered. I do not consider that this demonstrates the Council had properly considered Section 23 of the Act, particularly given its previous stance that replacement windows were not covered under DFGs.
46. I also asked the Council to explain how it had considered Y’s health and safety when making its decision to refuse a DFG. In response, the Council sent me a copy of the Policy with no other comment.
47. Further to this, I asked the Council to provide evidence or explain why it had taken the stance that replacement windows were not covered under DFG legislation and what section of the legislation was used to inform its decision. In response, the Council said it had taken the policies into consideration and considered that fitting window locks and advising Mr X to move furniture away from windows was a suitable solution. The Council provided no evidence to explain why it believed replacement windows would not be considered under DFG legislation.
48. Taking all of the above into consideration, I am satisfied the Council:
• misunderstood that replacement windows are not necessarily excluded under the safety aspect of the DFG legislation;
• failed to properly explain why it did not consider it could offer assistance under its Policy;
• took the stance that Mr X would have known about the windows prior to purchasing the property which is not a consideration under DFG legislation; and
• has not fully demonstrated it considered all of the relevant information as part of the Panel process before making its final decision.
49. The Council has acted with fault in how it processed and considered Mr X’s application. This is likely to have led to confusion and distress to Mr X and his family. He has missed the opportunity to have proper consideration of his application and adequate explanation of the decision made. I have made a recommendation below to remedy this injustice.

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Agreed action

50. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks from the date of my final decision:
• apologise to Mr X;
• re-assess Mr X’s application and demonstrate full consideration of all relevant facts using relevant legislation to guide it; and
• share the Ombudsman’s guidance on good administrative practice with relevant officers to ensure clearer communication in future.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman