Summary: Mrs F complained about the way the Council dealt with her request for a disabled facilities grant. We found fault in the way the OT service dealt with the DFG referral in 2022. The Council has agreed to apologise and make a symbolic payment to remedy the distress and time and trouble this caused.

The complaint

1. Mrs F complained about the way the Council dealt with her request for a disabled facilities grant for her children, including there being a two-year delay, and that it delayed responding to her complaint.
2. Mrs F says this has severely impacted her children’s development and wellbeing and has caused significant stress and anxiety to all the family and time and trouble pursuing the complaint.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries, and:
• The Housing Grants, Construction and Regeneration Act 1996 (“the Act”)
• Government Guidance, Disabled Facilities Grant (DFG) delivery: Guidance for local authorities in England 2022 (“the DFG Guidance”)
9. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Disabled Facilities Grants/Adaptations

10. Disabled Facilities Grants are provided under the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to give grants to disabled people for certain adaptations to their home.
11. A person is disabled if:
• their sight, hearing or speech is substantially impaired.
• they have a mental disorder or impairment of any kind.
• they are physically substantially disabled by illness, injury or impairment.
• and/or they are a child or young person registered under paragraph 2 of Schedule 2 to the Children Act 1989; they are a disabled child as defined by section 17 of the Children Act 1989. (This includes young people who suffer from a mental disorder of any kind or are substantially and permanently handicapped by congenital deformity.)

(Section 100, Housing Grants, Construction and Regeneration Act 1996)

12. Before approving a grant, a council must be satisfied the work is necessary, meets the disabled person’s needs, and is reasonable and practicable.
13. The maximum grant payable by a council is £30,000. A council can award other discretionary help if it thinks it is necessary. The council grant amount is subject to a means test applied to the disabled person.

Processing a DFG

14. The DFG Guidance 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.
15. Following an assessment by an OT, recommendations for any adaptations needed are sent to the council and the person may make an application for a DFG. The application for a grant is considered by the Council’s DFG Panel.
16. A council should decide a grant application as soon as reasonably practicable. The DFG Guidance sets best practice targets for timescales for moving through these stages, which should be met in 95% of cases, but acknowledges that timescales for completion of works will depend on the urgency and complexity of the work required. The best practice target is for Stage 2 (the Assessment) in non-urgent complex cases to be completed within 35 working days of first contact. (DFG Guidance, paragraph 4.16)
17. Once the grant has been approved, works should be completed within 80 working days. The council 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.
18. In Blackburn with Darwen, the OT sends recommendations to the Council’s DFG Panel, which includes representatives from Housing and Children’s Social Care. The Council’s DFG Coordinator writes to the customer with the Panel’s decision.

Occupational Therapy assessments

19. The Guidance says a DFG assessment is to identify the person’s needs and what home adaptations are necessary and appropriate to meet those needs. Councils can use a triage system to make an initial determination of the complexity and urgency of a case, and whether an OT is needed to carry out the DFG assessment.
20. In 2021 the Council commissioned Lancashire and South Cumbria NHS Foundation Trust (“the Trust”) to provide OT assessments for the purposes of a DFG application. The Trust says its OT service was commissioned “to provide assessment and intervention to children and young people who met the social care occupational therapy criteria.”
21. The Council’s website says if someone is considering applying for a DFG, they should first self-refer to the Trust’s OT service for an assessment and a link to do so is provided.
22. The Trust’s OT service logged any referrals received and sent them for weekly triage. The referral would be accepted or rejected based on service criteria and the outcome communicated to the family. Referrers could request a review of this decision. The Trust says this triage enabled the OT service to determine what type of assessment was required (e.g. environmental adaptation).
23. The Trust has a clinical pathway for safety adaptions which says that OT referrals received for children and young people where behavioural needs are identified, will be discharged from OT and referred to the Paediatric Learning Disability Team. A re-referral to the OT service would be accepted once their involvement has been completed.
24. The Trust says if a child is presenting with behaviours that challenge and is requesting an OT assessment for equipment/environmental adaptation to reduce associated safety concerns in the home environment, it is best practice for less restrictive measures to be considered before a referral to OT for equipment and/or adaptations is made. For example: behavioural management strategies, therapeutic intervention and/or medication.
25. The DFG Guidance says where home adaptations are being considered to deal with behaviours that challenge, it is good practice to consult with specialist colleagues to fully explore the correct balance between therapeutic interventions and adaptations. Where behaviours threaten the safety of others living within the household, the grant can be used to reduce the risks to their safety. For example by creating a separate bedroom. (DFG Guidance, paragraph 4.34)

Complaint procedures

26. The Council has a two-stage complaint procedure. It aims to respond at stage one within 10 working days and at stage two within 20 working days.
27. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services, that is services which are provided under Part 3 of the Children Act 1989.

Discrimination – the Equality Act 2010

28. The Equality Act 2010 makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. These include disability. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
29. We cannot find that an organisation has discriminated or breached the Equality Act as this can only be done by the courts. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
30. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

What happened

31. Mrs F has two children, J and M, who have a genetic condition which causes learning disabilities and additional needs. J also has autism and continence and sleep issues.
32. The family had been living in a different local authority area. In 2020 they had an OT DFG assessment which said J required a ground floor ensuite bathroom as he could not share a bathroom with his siblings. The family applied to the other local authority for a DFG, which they say was approved, but decided to move to a larger property where it would be feasible to have an extension for a bedroom and wet room and maintain garden space. They moved to the Council’s area in 2021.
33. In October 2021 the family contacted the Council to start the DFG process. The Trust says its OT service received a referral on 18 November 2021. It issued an invitation to Mrs F to get in touch, but did not receive a reply by 5 January 2022, so the case was discharged. The OT service issued a discharge letter on 10 January 2022.
34. The Trust says it received a new referral on 16 March 2022. The Trust says J and M were accepted onto the behavioural pathway for a triage phone assessment.
35. The phone triage took place on 9 June 2022. It identified that J had sleep, toileting and bathing needs which were felt to be impacted by his behaviours related to his medical condition. M’s needs were considered to be physical difficulties rather than behavioural, so she was placed on waiting list for OT allocation.
36. J and M’s cases were discussed at a joint OT/learning disability team meeting on 16 June which agreed with the decision to refer J to the learning disability service. The referral to OT for J was rejected.
37. The Trust called Mrs F on 23 June to discuss this outcome. She said she was frustrated with having to wait for a learning disability assessment and did not feel this was required as they had previously had an OT recommendation for adaptations. Mrs F asked for a second opinion. OT agreed to pass this onto the Council’s team coordinator and clinical lead in the area.
38. On 17 July, the Council’s social worker told Mrs F she would pass her details to the DFG social worker. I have seen no evidence of further correspondence or action at this point.
39. Mrs F complained to the Council on 28 November that she had not yet had a decision on her application for a DFG despite having requested one in November 2021. The Council noted it had not received a DFG application. It contacted the OT service to see when the assessment had been.
40. The Council sent a stage one complaint response on 6 January 2023. This said OT had decided J’s needs were behavioural not functional so had referred him to learning disability. M remained open to the OT service for further intervention but due to long waiting times she had not yet been seen.
41. The response did not say that Mrs F could escalate her complaint to the second stage but Mrs F requested this on 8 January. She considered that there was no need for an OT assessment as there had already been one in their previous local authority area which had found adaptations were necessary.
42. She also disputed the behavioural/functional needs split. She said the Council was discriminating against J by preventing him from accessing a DFG assessment, due to categorising some of his disabilities as a behavioural need, thus overriding his access to an assessment for his functional need.
43. The OT service contacted Mrs F on 11 January to arrange an assessment for M but it was then cancelled as M was unwell.
44. The Council emailed Mrs F on 27 January to say it would issue a joint stage two response to her complaint. This meant the Trust would need to carry out an investigation first in relation to the OT assessment for J.
45. The OT service contacted Mrs F five times over the next few months but was unable to arrange a date for an assessment for M. This was in part because Mrs F was awaiting a response from the Council about her complaint and did not consider an OT assessment was necessary.
46. The Council sent a further complaint response on 17 April. This said that the Trust had attempted to arrange an OT assessment but Mrs F had declined. It was therefore intending to discharge M’s case, although a further discussion was offered. The letter says Mrs F could escalate her complaint to stage two under the children’s statutory complaints procedure.
47. An OT DFG assessment was eventually done on 26 April. The OT recommended adaptations be made, including an ensuite or other bathroom adaptations. The OT’s recommendations were sent to the Council on 9 May 2023. The Council is currently considering a DFG application, which is not part of this investigation. The Council stopped commissioning the Trust’s OT service in summer 2023.

My findings

48. There is evidence that a request for an OT DFG assessment, as stage one and two of the DFG process, was made on 18 November 2021. The OT service contacted Mrs F but received no reply, so discharged the case. Mrs F says she did not receive the letter, but I have seen evidence of it. I therefore do not find delay.
49. A further referral was received on 16 March 2022 and an appointment made. At this point, an OT DFG assessment should have been completed within 35 working days (ie by 10 May) to be in line with the DFG Guidance.
50. Instead there was a phone triage on 9 June. This is fault. Whilst the DFG Guidance allows for a triage process, this is to determine the urgency and complexity of the DFG case (in line with paragraph 4.16 of the DFG Guidance). I do not consider a phone triage is a suitable replacement for a DFG assessment to determine whether home adaptations are needed to meet a disabled person’s needs.
51. The outcome of the triage was that J did not have functional needs. This was fault. The DFG Guidance and the Act say that DFG grants are awarded to people with a disability (as set out in paragraph 11 above). There is no distinction between behavioural and functional needs. My view is there is no scope in the Act or DFG Guidance for a triage system to refuse an OT DFG assessment.
52. The Trust had been commissioned by the Council to provide OT DFG assessments, but it appears that the referral in March 2022 for J and M was dealt with as an ordinary referral for OT input, rather than for an OT DFG assessment. As a result, J was directed towards learning disability for support. Whilst J may require learning disability services, my view is this is a separate matter to that of assessing for a DFG.
53. The Council’s arrangements with the Trust should have ensured that an OT would have visited J and M’s home to determine if adaptations were necessary within 35 working days of the referral. This did not happen, which is fault.
54. As a result, the OT DFG assessment did not take place until April 2023, after Mrs F had complained. I do not consider there was delay between January and April 2023 as the OT service was attempting to arrange an appointment. But if there had been no fault earlier, the OT DFG assessment would have taken place by 10 May 2022.
55. I cannot say that the fault caused Mrs F to miss out on adaptations as, although they were later recommended, they have not been agreed by the Council. However, the fault and delay caused frustration, distress and time and trouble to Mrs F. This is her injustice.
56. Mrs F says the Council has discriminated against J. We cannot find an organisation has breached the Equality Act 2010. However, I have not seen evidence of how the Council considered the impact on J, as a disabled child, when it responded to Mrs F’s complaint in January 2023. So I find there was fault in the complaint response. I consider the Council should have asked for an OT DFG assessment for J.
57. In response to my draft decision, Mrs F says the Council is still recommending J have further learning disability and other assessments. To be in line with paragraph 4.34 of the DFG Guidance, the Council should ensure that it considers “the correct balance between therapeutic interventions and adaptations” after an OT DFG assessment has been done and any adaptations recommendations made. The Council says it would consult with learning disability once the [DFG] feasibility has taken place.
58. There was fault in complaint handling. The stage one response should have been issued by 19 December 2022, but it was not issued until 6 January 2023 and it did not set out the procedure for escalating to stage two. Mrs F nonetheless requested escalation to stage two on 8 January. The response was therefore due on 6 February but was not issued until 17 April; a delay of over two months. In addition, this letter implied that it was a first stage response and said Mrs F could go to stage two of the children’s statutory complaint procedure. That is fault as DFGs are not provided under Part 3 of the Children Act 1989. A complaint about a DFG for a disabled child should be considered under the Council’s corporate complaint procedure. This fault caused some time and trouble to Mrs F, which is an injustice.
59. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says to remedy distress and time and trouble, a moderate, symbolic payment may be appropriate.

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Agreed action

60. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Trust, I have made recommendations to the Council.
61. Within a month of my final decision, the Council has agreed to apologise to Mrs F and pay her £400 to remedy the injustice caused, as set out in paragraphs 55 and 58.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman