Summary: The Council was at fault for failing to make the disabled adaptations Ms X needs in her home. The Council’s decision making was not in line with the law and guidance and it wrongly insisted Ms X must have all the works to her property it thought she needed. As a result, Ms X has spent over a year without access to a downstairs toilet. To remedy this injustice, the Council has agreed to apologise, progress works to Ms X’s home and make payments to her. The Council will also act to improve its services.

The complaint

1. Ms X complained about the Council’s handling of adaptations to her Council home. In particular, she says the Council:
1. wrongly told her she could not apply for a Disabled Facilities Grant (DFG);
2. delayed providing the adaptations she needs by combining the works with its planned improvement works to the property; and
3. failed to consider her physical and mental health needs in insisting on an open-plan design.
2. Ms X says all she needs is a downstairs toilet and she has been asking the Council for one for more than 10 years. She says the Council’s failures mean she lives with an unsafe kitchen and without the adaptations she needs, causing avoidable distress, pain, and risk.

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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. 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)
5. 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.
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)

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What I have and have not investigated

7. Part of Ms X’s complaint concerns the Council’s actions as her landlord. The restriction in paragraph four applies to those parts of the complaint. Ms X has also complained to the Housing Ombudsman Service, which is the correct body to consider complaints about social housing landlords.
8. My investigation has focussed on the Council’s assessment of Ms X’s need for adaptations and its actions in relation to this.
9. Ms X first asked the Council for a downstairs bathroom in 2015. The Council carried out an assessment in 2018. However, this is late and there are no good reasons for me to exercise discretion to consider it now. My investigation starts in March 2023, when Ms X made a new request to the Council.

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How I considered this complaint

10. I considered the complaint and the information Ms X provided.
11. I made written enquiries of the Council and considered its response along with relevant law and guidance.
12. I referred to the Ombudsman's guidance on remedies, a copy of which can be found on our website.
13. Ms X and the organisation 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

DFG

14. Disabled facilities grants (DFG) 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. These include enabling the disabled person to access their home and essential facilities within the home, like bathrooms, bedrooms, and kitchens.
15. Before approving a grant, a council must be satisfied the work is necessary, appropriate for the disabled person’s needs, and is reasonable and practicable.
16. The process of applying for a DFG usually requires:
• An assessment by an Occupational Therapist or other qualified assessor to identify the person’s needs;
• A schedule of works setting out the adaptations to meet the identified needs. Complex adaptations might also need plans or technical drawings;
• Quotes from at least two contractors for the cost of the works; and
• Certificates and approvals from both a tenant and a landlord, where the applicant is a tenant, or an owners certificate if the applicant owns their own home.
17. When the Council has all the necessary information, the formal grant application is complete. The Council should decide a grant application as soon as possible and must do so within six months.
18. The statutory timescale does not begin until the Council receives a complete application. However, government guidance sets out expected timescales for progressing an application and completing the works.
19. The guidance gives the following timescales:
• 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 (Disabled facilities Grant (DFG) Delivery: Guidance for local authorities in England 2022)

Background

20. Ms X is a tenant of the Council. She has disabilities which affect her mobility.
21. Ms X also has mental health conditions. These can affect her mood and how she reacts to stress or conflict.
22. Ms X lives with one of her adult children. The property has two bedrooms and a bathroom upstairs. Downstairs are two reception rooms and a small kitchen. Off the kitchen, there is a small space which used to be an outside toilet. This was removed by the Council several years ago.
23. Since 2016, the Council has been delivering a programme of works to improve the kitchens and bathrooms in its properties. It has contracts with a consultant and a contractor for these works.

What happened

24. In March 2023 Ms X completed a self-referral form for adult social care. She set out needs for both herself and her adult daughter who lives with her. However, the Council’s triage only considered Ms X’s needs. The Council identified that Ms X needed both an Occupational Therapy (OT) assessment and an assessment under the Care Act.
25. The Council’s conduct of the Care Act assessment is the subject of a separate complaint.
26. Two OTs visited Ms X at home in early July. The Council’s records say Ms X did not want to demonstrate her mobility on the stairs and that she became angry when asked to do this. Ms X says she had to conserve her energy because she had an appointment later that day. She says she asked the OTs to go up to the bathroom themselves.
27. In August, Ms X hired an independent OT to complete an assessment. This assessment said:
• The only bathroom access in the property was through one of the bedrooms
• The OT recommended redesign of the kitchen to enable a downstairs toilet and shower
• Ms X struggled to bend to access the oven, so needed an eye-level oven
• Ms X wanted a downstairs bathroom but would settle for a downstairs toilet
28. In September, the Council completed its assessment, incorporating the independent OT assessment. The OT report recommended:
• A toilet and shower on the ground floor
• Ms X’s bedroom to remain on the first floor but that Ms X might need to stay downstairs when necessary
• Longer term, the Council should explore with Ms X the option of living only on the ground floor, by using one of the reception rooms as a bedroom
• Space for an eye-level oven in the kitchen
29. In November, the Council shared a copy of the OT recommendations with the consultant producing the plans for works to Ms X’s home.
30. In December, the Council visited the property with the consultant. The purpose was to produce a feasibility report on the works to Ms X’s property.
31. In early February 2024, in response to an email from Ms X, the Council told Ms X she did not need to apply for a DFG because the Council was her landlord. It would fund the works from its Housing Revenue Account (HRA) if it approved the adaptations.
32. In mid-February, the consultant produced the feasibility report. The report included the following qualifications:
• “we have not been provided with specific details of resident’s accessibility limitations”
• “we have not been provided with a copy of the OT assessment of the resident”
• “no existing floorplans were provided”
33. The report included two proposals. Both were to create full downstairs living in Ms X’s home by using the front reception room as a bedroom. Proposal 1 was an open-plan kitchen and living room design which is fully wheelchair accessible. Proposal 2 had separate kitchen and living spaces. Proposal 1 was estimated to cost more than Proposal 2.
34. The Council arranged to visit Ms X in early April to discuss the report. It only discussed Proposal 1 with her. Ms X disputed the need for such extensive works. Ms X’s GP recorded in February 2024 that “there is no indication for her to be using a wheelchair”. In response to my enquiries the OT explained why they considered Ms X is likely to need wheeled equipment in the future.
35. In April, Ms X wrote to the Council. She said the Council had to consider her needs separately under the DFG rules and could not take into account the wider suitability of the property. She asked the Council for a copy of the feasibility report. The Council shared this with her at the end of April.
36. In May, Ms X wrote to the Council. She asked why her request for a DFG was not progressing. She asked why the Council kept referring to works being funded from the HRA. She said this was about funding, not the process. The Council replied to say Ms X cannot pursue a DFG because this is “not applicable in your case”.
37. In a separate email the same day, Ms X said she would like to proceed with Proposal 2. She said Proposal 1 would not meet her needs, particularly because it was open-plan.
38. In July, the Council wrote to Ms X in response to her complaint. It said:
• The proposed works are to “modernise the kitchen, improve the internal layout and to adapt the property to meet your immediate and possible long-term needs”
• The works had not progressed because Ms X rejected the proposal
• The proposal Ms X wanted was more expensive
• Ms X had reported the OT to the Health and Care Professions Council (HCPC) under “fitness to practice”
• Until the HCPC completed its investigation, the Council would not progress the adaptations further “as it is essential that the OT agrees your care plan with you before a submission can be made for the funding for the adaptation element of the project”
• It did not agree to Ms X’s proposed works and if it could not agree the proposed works with her, it would not complete the adaptations and would instead consider rehousing options for her.
39. In September, Ms X made a new self-referral to request a DFG. In her request she said she needed a downstairs toilet and a separate shower in the upstairs bathroom.

My findings

Can Ms X apply for a DFG?

40. The Council has repeatedly told Ms X she cannot apply for a DFG because she is a Council tenant. In response to my enquiries, the Council said it uses the same decision-making process regardless of tenure. However, works to its own properties are funded by the HRA.
41. The Council is correct that it must fund adaptations to its own properties from its HRA. However, it has not at any point explained to Ms X that its policy is to follow the same process as for DFGs in every other respect. Instead, it has told Ms X that she cannot apply for a DFG. This was fault. This caused Ms X significant and avoidable frustration and distress. This is an injustice to Ms X.

The Council’s decision making

42. Although its policy is to make all adaptations decisions in line with the DFG process, the Council has not done so in this case.
43. When considering a DFG for works which meet one of the purposes set out in law, a council must approve a grant if it is “reasonable and practicable” for it to do so and the works are “necessary and appropriate” to meet the purpose.
44. It is not open to a council to apply the “necessary and appropriate” test holistically to a claimant's needs. The necessity and appropriateness of the works must be judged by reference to the needs which they are designed to meet. Nor can a council apply the “reasonable and practicable” test by reference to the broader question of the suitability of the property for the disabled person’s general needs. (McKeown, R (On the Application Of) v London Borough of Islington [2020] EWHC 779 (Admin))
45. Ms X applied for a downstairs toilet. This is a “purpose” for which a grant must be awarded in the Housing Grants, Construction, and Regeneration Act 1996. The OT assessment from September 2023 confirms Ms X needs regular access to a toilet. She has difficulty navigating the stairs as many times a day as she needs to use the toilet, and with sufficient speed to make it to the toilet in time. Providing a downstairs toilet is an appropriate way to facilitate her access to a toilet. There is nothing about the age or condition of the property which would make it not reasonable or practicable to provide one.
46. The court has said “in being satisfied that the "relevant works" are necessary and appropriate, what is being examined are the works which are the subject of the application for the grant”. (McKeown, R (On the Application Of) v London Borough of Islington [2020] EWHC 779 (Admin))
47. In Ms X’s case, the Council acted with fault by broadening the scope of the works beyond those Ms X applied for to include a full wet-room and bedroom downstairs. Whether Ms X has access to a bedroom or a shower on the days she finds it particularly difficult to manage the stairs is not relevant to the question of whether a downstairs toilet is “reasonable and practicable, necessary and appropriate”. Had it properly applied the DFG tests, the Council would have approved this part of the grant request. Failure to do so was fault.
48. Ms X also asked for a separate shower in her upstairs bathroom. Access to bathing facilities is a “purpose” under the Act. The OT assessments identified Ms X needed a shower. However, both OT assessments recommended this shower be downstairs. It is for the Council to decide what is necessary and appropriate to meet the identified need. The Council’s fault means it has not properly considered this part of Ms X’s application. I cannot say, even on balance, whether the Council would have approved this part of the grant request as being necessary and appropriate to meet Ms X’s needs. It may also have considered this request as part of its program of works to kitchens and bathrooms but this falls outside the scope of this investigation (see paragraph 7).
49. The court has said that where an application is for multiple adaptations, the Council must consider the tests in s23 and s24 of the Housing Grants, Construction and Regeneration Act 1996 in relation to each adaptation. (R (on the application of Gulrez (by his mother and litigation friend)) v Redbridge London Borough Council [2022] EWHC 2908 (Admin))
50. In Ms X’s case, this means it should have considered Ms X’s requests for a toilet and a shower separately. Therefore, although I cannot say whether it would have approved the grant for a shower, it should still have approved the grant for a downstairs toilet.
51. Ms X first contacted the Council in March 2023. Government guidance says councils should complete 95% of non-urgent but complex works in 180 working days. Ms X should therefore have had a downstairs toilet since December 2023. Instead, Ms X remains without an adaptation she needs to access a toilet reliably and safely throughout the day over a year later. This is a significant injustice to Ms X.

Does Ms X need wheelchair accessible adaptations?

52. The Council says in order to meet Ms X’s needs and anticipated future needs, any adaptations should be wheelchair accessible. Ms X disputes that she needs this and says the Council is trying to adapt the property to meet the needs of possible future tenants.
53. The OT assessment in September 2023 made no reference to possible future wheelchair use. It simply says Ms X needs a downstairs shower and toilet and should consider, in the longer term, using the front room as a bedroom. Understandably, Ms X thinks the consultant did not have a copy of the OT’s recommendations because the report said so. However, the evidence shows an email to the consultants in November 2023 attaching the OT recommendations. These were the same as those made in September 2023.
54. The OT has since explained why they think Ms X may need a wheelchair in the future. However, I have seen no evidence explaining why, based on the September 2023 recommendations and evidence from Ms X’s GP that she did not need a wheelchair, the proposed works were for full downstairs living and wheelchair accessibility. In the absence of contemporaneous evidence, this was fault.
55. Despite only requesting a downstairs toilet, Ms X agreed to Proposal 2, which would include a downstairs bedroom and bathroom, to try and progress the works. The Council says it did not present Proposal 2 to Ms X because the bathroom would be too far away from the bedroom and the layout would not allow for appropriate turning circles for a wheelchair.
56. The Council held a meeting after Ms X said she would agree to Proposal 2 in April 2024. Notes of this meeting say:
• Both proposals would meet Ms X’s current needs
• Proposal 2 would need further adaptations if her condition deteriorated in the future
• “Importantly, it was noted that in the event of a change in tenancy, the property would not be future proofed to accommodate the use of a wheelchair user (if required) without further extensive and costly adaptation works”
• “if the proposed adaptation works for this property were to proceed, they will need to be meticulously designed and future proof to meet all disability needs”
• Proposal 2 “would not make any provision to future proof the property to meet her long-term needs”
57. The minutes of this meeting show that although the Council was considering Ms X’s current and future needs it was also considering the needs of possible future tenants. The context of the minutes indicates this was at least in part due to the significant cost of the works. Both the needs of future tenants and the cost of the works are irrelevant to the “necessary, appropriate, reasonable, and practicable” test for a DFG. Taking irrelevant matters into account was fault.
58. Government guidance says councils “should consider how best to achieve value for money, taking into account: how to design adaptations that will meet current and anticipated future needs; and projected costs of health and social care in the longer term.” (Disabled facilities Grant (DFG) Delivery: Guidance for local authorities in England 2022 section 4.40) However, it “is important that the assessment of need focuses on what is important to the disabled person, rather than solely on safety and function.” (section 4.41)
59. The Council failed to adequately explain why Proposal 2 will not meet Mrs X’s needs, given it includes a downstairs bedroom which the OT assessment considered Mrs X may require longer term and includes a downstairs toilet and bathroom in line with the OT assessment. It is also in line with Mrs X’s wishes and needs regarding how she uses her home.
60. Despite asking for much less work than the Council is proposing to do, Mrs X says the Council has made her feel that her requests are unreasonable. It has blamed her for the works not having progressed because she will not agree. But the works it is asking her to agree to are not in line with the OT assessment and the Council has not made its decision properly. It was not unreasonable or inappropriate for Ms X to object to proposed works that fundamentally change her home in ways she does not want, and which are not based on her needs.
61. Ms X says the Council’s actions towards her amount to bullying and coercive control. I cannot make a finding, based on the evidence, that the Council bullied Ms X. The Council says it was trying to do what it thought was best for Ms X and her needs. But I acknowledge Ms X felt bullied by the Council’s repeated insistence that she accept Proposal 1. Coercive control is a crime and is therefore a matter better considered by the police.

Delay progressing the case

62. It makes sense that the Council would seek to do the adaptation works alongside the planned works to Ms X’s kitchen and bathroom and using its existing contractors. We expect councils to coordinate works to minimise disruption and it is not fault for it do so. However, in this case, the Council has confused and blurred its role as local housing authority and therefore DFG decision maker and its role as Ms X’s landlord. It has made decisions about her adaptations based on its wider interests as a landlord. It has sought to do much more extensive works to her home than Ms X requested and wrongly told her the DFG process did not apply to her. This was fault and added avoidable further delay to progressing the adaptations.
63. The Council refused to proceed while matters were ongoing with HCPC. But the OT had already written their report and made recommendations. If necessary, it could have sought input from the independent OT. The Council should have continued with the process and not to was fault. Referrals to the HCPC are distressing for those concerned and it is important that Ms X not make such referrals lightly or just because she disagrees with an assessment. However, it is not appropriate for the Council to treat Ms X differently because she used the correct mechanism to raise concerns. This caused Ms X significant distress, frustration, and uncertainty.

Potentially violent customer

64. In October 2017, the Council included Ms X on its “potentially violent customer” list. This said that officers should visit Ms X in pairs. The record also said not to tell Ms X she had been included on this list.
65. The Council’s health and safety team told housing services in June 2018 that it had reviewed Ms X’s inclusion on the list. It removed her from the list. However, the health and safety team did not tell its adult social care service. Adult social care therefore continued to visit Ms X in pairs and did not tell her why.
66. Because Ms X did not know the warning existed, she could not challenge it or complain about it. I have therefore exercised discretion to investigate this issue without Ms X having to complain to the Council first.
67. In response to my enquiries, adult social care identified its failure to update its records. It has now removed this warning from Ms X’s file. Failure to remove the warning in 2018 was fault. Failure to carry out its own review of the warning at any point since 2017 was also fault.
68. The records show that Ms X questioned why the OTs and others visiting her home came in pairs. The evidence demonstrates that she found this frustrating. Due to her mental health condition, Ms X found this intimidating and overwhelming. This is a significant injustice to Ms X over an extended period.
69. The evidence shows that Ms X did get upset and frustrated in interactions with the Council. On balance, it is likely that feeling intimidated and overwhelmed made Ms X more defensive and more likely to express her frustration in ways the Council found inappropriate. It is also possible the warning note affected how officers approached Ms X. It is striking to note that in the records I have seen, the one occasion when a Council officer visited Ms X alone, in June 2023, Ms X “was very polite” and “we had a meaningful discussion”.

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Agreed action

70. To remedy the injustice to Ms X from the faults I have identified, the Council has agreed to:
1. Apologise to Ms X in line with our guidance on Making an effective apology
2. Agree with Ms X to either proceed with Proposal 2 or produce a new proposal which updates Ms X’s kitchen and adds a downstairs toilet.
3. Pay Ms X £100 a month for the 15 months she has been without an accessible downstairs bathroom because of the Council’s fault, for a total of £1,500.
4. Pay Ms X a further £500 in recognition of the significant and avoidable distress caused by treating Ms X as a potentially violent customer for over six years without review
71. The Council should take this action within four weeks of my final decision.
72. The Council should also take the following action to improve its services:
1. Share a copy of this decision with staff in the relevant departments to identify learning from this complaint.
2. Remind relevant staff that council tenants can apply for a DFG and that the Council’s policy is to use the same process for all adaptations, regardless of tenure. This means the Council must approve works if the legal tests are met.
3. Remind relevant staff that the tests of “necessary, appropriate, reasonable and practicable” apply to each adaptation separately. Provide training or guidance as needed.
4. Ensure the Council keeps any warning flags, such as “potentially violent”, under regular review and updates all relevant departments where this flag is removed or changed.
73. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Final decision

74. Subject to further comments by Ms X and the Council, I intend to complete my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman