Derbyshire County Council (19 003 189)

Category : Adult care services > Other

Decision : Upheld

Decision date : 20 Jan 2020

The Ombudsman's final decision:

Summary: the Council avoidably delayed in taking action to resolve matters related to funding significant adaptations to a property above the level of the DFG amount. This fault caused injustice in the form of distress and loss of opportunity which the Council will recognise by apologising and making a payment of £1000 to Mr F. It will also introduce service improvements to ensure that faults identified in the coordination of assessments do not occur in future.

The complaint

  1. The complainant, whom I shall refer to as Mr F, complains that the Council failed to provide adequate and timely services to his family following approval of a Disabled Facilities Grant (DFG) related to his son’s mobility needs in October 2017. Specifically, he complains that:
  1. it delayed from October 2017 to January 2019 to start the work agreed under the DFG and that the costs of the work increased three times over this period;
  2. none of the family was provided with any assistance from adult social care during this period of delay (either his son or him and his wife as carers);
  3. it incorrectly required him to lodge changes with the Land Registry and this incurred legal costs for Mr F that were entirely unnecessary; and
  4. it failed to deal with his requests for information and advice or his formal complaint about these matters.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We cannot question whether a council’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. 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)
  2. 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)

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How I considered this complaint

  1. I discussed the complaint with Mr F and considered the written information he provided with his complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision.
  2. In its comments to me the Council has confirmed that the DFG application was administered by a local district council. My consideration of the complaint is focussed on actions taken by Derbyshire County Council.
  3. I gave the Council and Mr F the opportunity to comment on my draft decision. I took account of the responses I received before reaching a final decision.

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What I found

What should have happened

  1. Disabled Facilities Grants (DFGs) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. There is also detailed guidance on good practice.
  2. Disabled Facilities Grants are for people with a qualifying disability who need adaptations in their home to help them remain in their home. They are mandatory and must be awarded if the applicant meets the qualifying conditions.
  3. 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 subject to a means test.
  4. A council should give the applicant a decision as soon as reasonably practicable. This must be within six months of the date of the grant application. If the council approves the grant the decision letter must include:
  • what work is eligible for the grant
  • the council’s estimate of how much everything will cost (including the work, surveys, plans etc)
  • the amount of the grant. If necessary the amount can be reassessed at a later date
  1. The work must usually be completed within twelve months of the council approving the application.
  2. The guidance says that where the process to secure a long-term solution will be lengthy, then it is appropriate for interim help to be provided through the provision of equipment or temporary works. It says it is not acceptable that the disabled person should be left without interim help for a period of weeks or months.
  3. The guidance has set performance targets for councils to achieve DFG which it says the Council should aim to achieve in 95% of its adaptations.
  4. This is split in three stages:
    • Stage 1: initial enquiry to OT recommendation.
    • Stage 2: OT recommendation to approval of scheme.
    • Stage 3: Approval of scheme to completion of works.
  5. The timescales for urgent adaptations are:
    • Stage 1 (5 working days), stage 2 (30 working days) and stage 3 (20 working days
  6. Derbyshire County Council confirms that the decision as to whether to approve the grant ultimately lies with the relevant District Council, although the County Council as the council with social care responsibility which will initially identify an adaptation as being necessary, based on an assessment of individual needs.
  7. DFG applications from home-owners must include an owner’s certificate which certifies the applicant has an interest in the property and intends to live in the property for a certain number of years.
  8. If a DFG application involves works which would require planning consent, this has to be applied for separately.
  9. In 2008, the Secretary of State gave councils powers to ask for repayment of a DFG over £5000 if the recipient sold the property within 10 years of the adaptation. A council can place a charge on a property to secure the debt. This prevents a sale of the property before repayment. Clause 4 of the Housing Grants Construction and Regeneration Act 1996: DFG (Conditions relating to approval or payment of Grant) General Consent 2008 says a land charge placed on a property is binding on any person who is for the time being an owner of the dwelling or building. Derbyshire County Council’s Major Adaptations practice guidance states it will place a legal charge on a property where it has provided additional adult social care top up funding for a major adaptation to a property. The Council will only trigger repayment of the whole or part of the amount it has paid in certain circumstances, usually the sale of the property. The Council’s guidance confirms that the legal charge is a legally binding document signed by the home owner which is registered against the property at the Land Registry. The registration at the Land Registry means that a sale of the property cannot go ahead without the amount under the legal charge being paid to the Council.
  10. Someone who owns a leasehold property does not own the land on which their property is built even if they have paid off a mortgage on the actual property. Leaseholders are required to register the property with the Land Registry unless there are fewer than seven years left on the lease when they take ownership.
  11. The Care Act 2014 says that councils must conduct an assessment where it appears an adult may have need for care and support. The Act also says that where an individual is caring for an adult the council must consider whether to carry out a carers’ assessment if it appears the carer may have any level of needs for support.
  12. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.

What happened

The DFG application

  1. Mr F’s son, Y, was diagnosed with a progressive and life-limiting illness in July 2017 with a predicted life expectancy of between two and five years. The nature of the illness meant that as it progressed Y would become increasingly physically disabled. The hospital that diagnosed Y’s illness made a referral to the Council for assistance in August 2017.
  2. An Occupational Therapist (OT) was appointed to complete and assessment in August and visited the family to complete an initial assessment in early September 2017.
  3. The OT put forward a case to the DFG panel in mid-September recommending adaptations. The panel met in early October but did not reach a decision, instead referring the matter to the Disability Design Team (DDT) for a view on feasibility.
  4. During October, November and December 2017 the OT and the Disability Design Team visited the property to complete the feasibility study, completed a land survey, and consulted with lift companies.
  5. In January 2018 the OT provided Mr F with proposed plans and estimated building costs plus a contingency amount and the cost of two lifts, one inside and another outside the property.
  6. In late January Mr F asked for some changes to made to the proposed works and it appears there was some discussion about finances and how to fund the costs in excess of the DFG £30,000 limit. Around the same time another family member asked for a ceiling track hoist/mobile hoist to be fitted to help with moving and lifting Y. The OT seems to have subsequently clarified that a ceiling track hoist could be fitted but more surveys would be needed and the family would have to pay for the maintenance of the hoist. The records confirm that the cost of the proposed works were above the £30,000 DFG limit and that charitable funding would be sought for the additional sum or that the Council could consider additional funding from its major adaptations budget.
  7. A Council officer visited Mr F in February 2018 to sign the plans so that the DFG process could proceed to “working drawings”, planning permission could be sought, application to building control made and to arrange visits from a lift company. Mr F requested some changes to the plans including a specialist toilet and the hoist. The OT asked the DDT to change the plans. The amendments were duly made and Mr F agreed these in early March 2018. The Council’s chronology records that the OT sent the DDT a copy of the signed plans, “permission from leaseholder” and requested progression of the works. There were ongoing discussions about funding of the costs above £30,000 would be made as this needed to be confirmed before the DFG could be formally agreed. The OT is noted to have asked the panel members to reach a decision before the next scheduled panel meeting due to the deterioration in Y’s health.
  8. The DFG panel approved the proposed works in April 2018.
  9. In June 2018 the Council’s chronology notes that the work was waiting for planning approval. It appears that the lift was considered urgent at this stage but the DFG was ruled to not be able to be split to undertake this piece of work separately and the Council’s notes also say that funding above the £30,000 was also still unresolved and work could not start without this being sorted out.
  10. Planning permission was given in early July 2018. Just after this the Council confirmed the shortfall in funding for the costs of the work was around £15000. The OT agreed to ask for a grant from a specified charity and asked Mr F what he could contribute. In response Mr F submitted a hardship form requesting financial assistance on the basis of his financial hardship which was later submitted for consideration. The charity agreed a grant of around £2500. Around mid-August, Y’s family reported a deterioration in Y’s health and so social care discussed completing a care assessment for respite provision. Around the same time, a senior manager agreed that the Council would fund “the remainder of the funding” though the records later confirm that Mr F agreed the family could contribute £6000. The Council’s chronology states that an officer explained to Mr F that a legal charge on the property would be needed and that the OT was to liaise with legal department about that.
  11. In late August the finance team asked the OT for information about who owned the property in order that a financial charge could be placed on it. After the OT provided them with Mr F’s details they contacted him and Mr F provided the information they asked him for on the same day.
  12. In early September it appears the Council was still waiting for confirmation about how the additional funding requirements would be met and would not proceed until this information was available and the legal department was provided with a valuation of the property. Very shortly after this it appears the legal team was advised that the leasehold for Mr F’s property was not registered with the land registry. They advised Mr F that this needed to be sorted out legally using a solicitor.
  13. By September the total cost of the works was detailed as just under £54,000.
  14. In the approval of the DFG application dated October 2018 the Council states that application was made in January 2018. The approval confirms that a DFG of £30,000 is agreed.
  15. The Council says a pre-work meeting took place in November and the building work started in December 2018. The building work took place over January and February 2019 during which time Mr and Mrs F and Y moved out. Sadly Y died in late February before the property was in a fit state for the family to return to.
  16. The Council says it funded all works to remove fitted installations and to make the property as Mr and Mrs F wanted it. This included retention of the bathroom alterations and the specialist toilet. The Council says it also fitted new railings at the front of the property as the one provided in the adaptation did not look right without the outside lift in place. In addition it paid for Mr F and his wife to remain in alternative accommodation before returning to the family home.
  17. The Council confirms that the contribution Mr and Mrs F agreed to make and the grant paid to them by the medical charity have not been forwarded to the Council by Mr and Mrs F following the completion of the work.
  18. In its comments to me the Council says that between April 2018 and October 2018 planning permission had to be applied for and agreed, structural engineering reports had to be completed, tenders had to be made for the works, and additional funding sought as the maximum grant did not cover the full cost of the works. In addition, it says the property's legal ownership status had to be resolved. The Council recognises the costs of the works increased during the period. It says this was because there were changes in Y’s needs and additional works were consequently required. The Council says that other necessary changes were identified in the structural engineer's report and that drainage works were needed to the drive to the property.

Adult social care

  1. An OT from the Council’s social care team completed an initial assessment visit in September 2017. The Council says that Mr and Mrs F said they may need some respite care for Y but that Y did not want a social care assessment at this time.
  2. The Council says that in January 2018 another family member said that Mr and Mrs F did not want carers for Y and just wanted equipment and adaptations. I assume this was the adaptations and equipment that formed part of the DFG process.
  3. The Council’s chronology says that in March 2018 the OT talked to Mr and Mrs F again about a social care assessment after they enquired about this. The notes say that Mr and Mrs F said they would discuss further with Y and would let the OT know if they wanted her to arrange for social care assessment to be completed.
  4. The OT completed a referral for social care assessment in June 2018. At the same time one of Mr F’s relatives contacted the Council to say that Mr F was struggling. A social worker contacted Mr F and suggested that respite care or home care could help and arranged a visit to Mr and Mrs F a few days later at their home to discuss this. The Council says that at this home visit the social care worker talked to them about the assessment process and possible care packages of home care, sitting services, direct payments and respite. The note says that Mr and Mrs F told the social care worker that they were looking after Y without using any equipment for moving him and were advised that if carers were to care for Y at home there would need to be a moving and handling assessment and equipment in place. The Council says the worker confirmed that both home care and respite could be provided and that there were discussions about financial assessment at Mr F’s request. The Council’s notes say that Mr and Mrs F said they wanted to discuss between them and that they would make contact again if they wanted to proceed with an assessment.
  5. In late June the care worker and a specialist OT made arrangements to complete a “moving and handling assessment” in preparation for support that may be required into the home.
  6. The care worker contacted Mr and Mrs F in August to ask if they had decided what help they may want. Mr and Mrs F said they wanted a carer to support them to have a break. However, they had refused the moving and handling assessment and said they did not want any equipment within the home. The Council says that the care worker told Mr F that this was necessary before carers could come to the home to provide support and he was advised to proceed with the assessment. This assessment was completed in early September 2018.
  7. The Council says it told Mr F about carers assessments in early September. The Council says there was discussion with Mr F about what help would be needed when the construction work to the property was started as the property would need to be vacated. Mr F said he would like a carer to remain at the property with Y and one parent whilst the other had a break. Residential respite was noted as a possibility but was not the preference of the family.
  8. In early October Mr F asked if the Council had made a decision about equipment in the home and confirmed the family wanted a social care assessment.
  9. Around mid-October the Council sent information to Mr F about residential respite homes and asked him to confirm whether or not the family wanted residential respite. Having not received a response form Mr F the Council chased this up in early November, offering a direct payment as an alternative so that the family could remain together.
  10. The Council says that Mr F agreed to a social care assessment and this was completed in late November 2018. The Council says that care at home was discussed again but the family did not want the equipment required for carers to support Y at home. The Council says that Mr and Mrs F advised that Y had a way of transferring without equipment and they did not want to deviate from this, although this method would not meet moving and handling requirements needed for paid carers to support in the property. The Council says that residential respite was also discussed but this was not something Y wanted so it was decided to pursue a direct payment as an alternative to respite.
  11. The Council says it offered Mr and Mrs F a carer's assessment at this meeting and they agreed to this. The Council states that it made the referral to the agency that carries out carers’ assessments on its behalf at the end of January 2019 and the agency contacted Mr and Mrs F to complete the assessment in April 2019. The assessment was no longer required by that time.
  12. In January the Council agreed it would provide a direct payment equivalent to the cost of residential respite to enable the family to rent a holiday home whilst the DFG works were being completed to their own home. Mr and Mrs F and Y moved out to the holiday home in January whilst the works were being completed. They remained living there when Y died in late February. The Council agreed to Mr and Mrs F remaining there until the works to their home were completed.

Land registry

  1. The evidence provided indicates the Council first became aware that the property was a leasehold in February 2018 but did not become aware that the leasehold was not registered with the Land Registry until September 2018 after the Council had agreed to meet a large proportion of the adaptation costs out of its major adaptations budget and so wanted to place a legal charge on the property.
  2. In its comments to me on this issue the Council says that it would usually require the Land Registry registration to be updated before proceeding but that in this case it accepted evidence that the process had been started by Mr Y's solicitor, as the process can take up to six months to complete.

Failure to respond to requests for information and complaint

  1. Mr F complained to the Council about the adult social care provision in October 2018. Specifically he complained about the OT and asked that she be replaced. He also asked for a response to queries about:
    • Whether the Council would fund respite care for his son and accommodation ofr him and his wife as they had to vacate their home during the works; and
    • Why the Council wanted his financial contribution to the works paid upfront.
  2. He also asked the Council to provide copies of council meeting minutes where the policies related to these two issues were agreed.
  3. The Council responded in November stating:
    • The Council put all the funding for the project in place before the works were completed (from all sources) and then the Council pays all the monies due to the contractor after the work is completed;
    • Y would be likely to be eligible for respite care subject to a social care assessment being completed for which a social worker was being allocated. That they would only be eligible for assistance for accommodation if they met the social care eligibility criteria but that an alternative would be for a direct payment to be made which would allow them to choose the most appropriate care arrangements for Y. Also, that a carers’ assessment could identify needs for them as carers and which may enable them to access funding.
    • The officer apologised for the length of time the process took to complete but explained this process had to be completed to access the DFG and she agreed to his request for a new OT and appointed a new one.
  4. The Council accepts it did not provide the documents that Mr F requested at the time.

Was the Council at fault and did this cause injustice?

  1. It is not the case that the Council delayed from October 2017 to January 2019 to start the work agreed under the DFG. The Council says the date the application was received was January 2018. It seems clear this was not the case. The hospital referred the matter to the Council around July 2017 and the OT first visited the family and presented the matter to the DFG panel in September 2017. The Panel considered it in October 2017. On balance therefore I consider the application was made in July 2017. If the Council required an application form to be completed by Mr F in order for it to be considered an application it should have told him this and I see no evidence this was the case. I am unclear why the Council says the application date was January 2018. So, I consider it fault that the July referral was not treated as an application though it seems that such fault would lie with the district council rather than Derbyshire County Council and I am not investigating a complaint against the district council.
  2. The final decision to approve the DFG was issued in October 2018 so it seems it took the district council 15 months to reach a decision. I am not considering a complaint against the district council however but can look at Derbyshire County Council’s actions in relation to this as the OT, planning and legal issues appear to have been undertaken by the County Council. If we take the application date as being July 2017, the latest the decision should have been reached was January 2018. Y’s situation must have been urgent given his diagnosis and so the Council should have treated it accordingly. The guidance suggests that when a situation is urgent the process should be completed in 11 weeks. I recognise that this particular project was complex as the situation was changing rapidly and the project itself was very large and it is not reasonable to have expected it could be completed in 11 weeks. I do however consider there were avoidable periods of delay in the process. Specifically these were:
    • the Council was aware of the issues regarding the shortfall in funding by January 2018. I accept that the costs increased after this due to Y’s increasing care needs but it was already clear that the cost of the project would be above the £30,000 by that time but there is no evidence that the County Council started considering ways to finance this until July 2018 when it approached a charity. I see no reason why it could not have done this, agreed with Mr F what he could contribute and considered its own hardship/top up funding arrangements in January. It could also have addressed the leasehold issues then (I recognise that the Council did not wait for the leasehold records to be amended and will address issues related to the leasehold below); and
    • the Council would still have needed to obtain planning consent, the structural reports etc and this would have taken around another two months, meaning had it undertaken all these actions promptly it could have been in a position to start negotiating on the work considerably earlier than it was.
  3. I find the failure by the Council to act more promptly amounts to fault and that this caused injustice to the family. I consider that had it acted more promptly the works could have started some months earlier and this was particularly important given the nature of Y’s illness.
  4. Mr F complains that none of the family was provided with any assistance from adult social care during the period the DFG was being considered. Councils need to complete an assessment in order to identify eligible needs before providing any services. The information provided by the Council suggests the Council offered an assessment in September 2017 but the family did not want this at that time. It seems that it was not until June 2018 that the family expressed an interest in an assessment and the OT made a referral to the Council’s social care team. After further consideration by the family assessment did then take place in November 2018 but the Council says that in order to provide carers in the home the family would need to agree to having equipment for the carers to lift and move Y and they refused this. I accept that it seems this point was made clearly to Mr and Mrs F and so I do not find fault in the Council not providing help in the home in the absence of the family refusing this equipment. Similarly, the Council offered residential respite but the family refused this. As it was not until November 2018 that the family agreed to the assessment, I consider it offered the direct payment as an alternative quite promptly and this was sorted out for January when the family had to move out due to the DFG works to the property. The Council says Mr and Mrs F agreed to a carers’ assessment in November but did not make the necessary referral for this until the end of January and it was over two more months before any action was taken to complete a carers’ assessment by which time it was too late. I consider this delay amounts to fault. I cannot definitely say that it caused Mr and Mrs F injustice in terms of lost services as I do not know if it would have resulted in any services being provided. However, they lost the opportunity to have this need considered and this is an injustice in itself.
  5. I do not consider the Council was at fault in requiring Mr and Mrs F to register their property with the Land Registry in order to place a legal charge on it. The Council’s policy allows for this. I recognise that the Council did not make Mr and Mrs F wait for this process to be finalised before agreeing for the DFG work to commence however, as I have said above, I also consider this could have been pursued several months before it was.
  6. I consider the complaint Mr and Mrs F submitted in October 2018 was dealt with promptly and thoroughly although the Council accepts it did not provide Mr and Mrs F with copies of the requested documents. Mr F complains also about the communication generally over the period in question. Based on the information provided in the chronologies it appears that the Council did remain in fairly regular contact with Mr F, with the exception of a period where he asked the Council to deal with another family member, and overall I do not consider I have seen evidence to suggest that the level of contact was so poor as to amount to fault.

Agreed action

  1. The Council will apologise for the delays identified.
  2. I recognise the Council removed some of the adaptations that the family no longer wanted following Y’s death and also that it paid for Mr and Mrs F to remain in the holiday accommodation after Y died pending the end of the work. It did not have to do either of these things. It is to the Council’s credit that it did this. However, the degree of distress and loss of opportunity caused by the avoidable delays in processing the DFG application and which are attributable to the Council justify a further remedy. The Council will therefore pay Mr F £1000 to acknowledge that, but for the delay, Mr and Ms F and Y would have been able to have some time in a suitably adapted property before Y died and that not having this caused them significant injustice.
  3. The Council will provide the apology and make the agreed payment within one month of the final decision on the complaint.
  4. The Council confirms that in October 2019 it introduced a system of case coordination whereby a single named worker takes overall responsibility for case manging all aspects of a service user’s assessment and care and support arrangements including coordination of multiple agencies where this is the case. I am satisfied that these arrangements should ensure that delays caused by cross-departmental financial or legal issues like those that arose in this case should not occur in future.
  5. From February the Council will introduce time limits for the completion of assessments and care and support plans. This will ensure that delays in making referrals for carers’ assessments, such as in this case, will be avoided in future. In addition, the Council will introduce a triage system to ensure that carers who have a high level of need or those that in crisis will receive an expedited assessment and coordinated support. The Council will update me two months from the date of this final decision statement to confirm this process has been introduced and is operational.

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Final decision

  1. The Council avoidably delayed in taking action to resolve matters related to funding of the project above the level of the DFG amount. This caused injustice. The Council will apologise and make a payment of £1000 to Mr F. It will also introduce service improvements in the form of new systems to ensure that faults identified in the coordination of assessments do not occur in future.

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Investigator's decision on behalf of the Ombudsman

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