Decision : Closed after initial enquiries
Decision date : 16 Mar 2020
The Ombudsman's final decision:
Summary: Mr A complains Lancashire County Council has not referred him for a Disability Facilities Grant. I have declined to investigate this complaint as I have not found any indication of fault on the part of the Council and there is no more an investigation could achieve for Mr A.
- Mr A has complained Lancashire County Council (the Council) has not agreed to refer him for a Disability Facilities Grant (DFG) so he can install a shower in his bathroom.
- Mr A has vision difficulties and is not confident of taking baths for fear he may fall and injure himself. Due to not having a walk-in shower in his bathroom, Mr A has suffered distress from not being able to bathe properly.
- As a result of the complaint Mr A would like for the Council to make the referral for a DFG and ultimately for a walk in shower to be installed in his property.
The Ombudsmen’s role and powers
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant responsible body has to make.
- The Ombudsmen 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, and Health Service Commissioners Act 1993, sections 3(4)- 3(7)).
- The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:
- it is unlikely they would find fault, or
- it is unlikely they could add to any previous investigation by the bodies or
- they cannot achieve the outcome someone wants
(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended).
How I considered this complaint
- I considered information from Mr A, the Trust and the Council. I also took account of relevant policy, law and guidance. I sent out my draft decision to Mr A for comments. He did not have any comment to make on the draft, so I have not amended this final decision.
- East Lancashire Hospitals NHS Trust (the Trust) provide Occupational Therapy (OT) services on behalf of the Council under a Section 75 agreement.
- Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. Subsection 5 of Section 75 says the NHS and councils remain liable for the exercise of their own functions. Therefore, in this case ultimate responsibility lies with the Council.
What I found
- Mr A has a condition called keratoconus which is a disorder of the eye which results in progressive thinning of the cornea. This may result in blurry vision, double vision, near-sightedness, and light sensitivity. Usually both eyes are affected. Mr A does not have sight in his right eye and has a lens for his left eye which gives him some vision. However, he can only tolerate having it in place for no more than one to two hours every day. In addition, he cannot use the contact lens while bathing.
- In November 2018 Mr A had visits from a council officer and an occupational therapist (OT) to be assessed for suitability for a DFG to install a walk-in shower at his home. DFGs are provided under the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to provide grant aid to disabled people for certain adaptations. Before approving a grant, a council must confirm the work is ‘necessary and appropriate’ to meet the disabled person’s essential needs. This is first assessed by an OT.
- The original OT’s assessment recommendation was to discuss with their senior OT the option of installing equipment or adapting the bathroom. The decision was that Mr A did not meet the criteria for a DFG but the Trust suggested coloured tape for the edge of his bath and a bath mat.
- In December 2018 Mr A wrote to the Trust questioning this decision as he still felt his bath was unsafe.
- The Trust carried out a further OT assessment in February 2019 and wrote to Mr A offering him a bath lift to help him in and out of the bath. It said that support would be given by staff to show him how to operate the equipment. In addition, it said this was in line with its ‘incremental approach’ in that it would offer one option after another until it found one that met his needs.
- Mr A responded in March 2019 saying he found the incremental approach inappropriate and discriminatory. He said he previously used a bath lift for his mother and found it ineffective. His vision meant he could not operate buttons or judge the height of the lift. He also said the bath lift would not help with the problem of seeing the edge of the bath to get out or any unseen spillages.
- Mr A also found the approach of being viewed using the lift degrading and asked what happened when the support of staff was removed.
- The Trust responded in May 2019 and said the plan the therapy team was proposing would involve practice operating the bath lift and identifying the correct height for transfer in and out of the bath. It said up until his assessment Mr A had been using the bath. The lift would be a quick solution which may resolve some of the concerns even if the ultimate outcome following assessment with the bath lift was to recommend a level access shower.
- Mr A approached the Parliamentary and Health Service Ombudsman (PHSO) in May 2019 with his complaint. PHSO sent him back to the Trust which had agreed to carry out another OT assessment, this time carried out by the Council directly, with a view to resolving the situation.
- Another OT assessment took place in September 2019. Following this a swivel bather was recommended. This is a turning bath seat that fits onto the bath allowing easier transfers over the bathtub. This was to solve the issue of Mr A getting in and out of the bath. Mr A reported nearly falling off the swivel bather. He said he would accept the bath lift and see if it worked.
- The Trust responded stating it would organise a visit from an OT and a Rehabilitation Officer for the Visually Impaired (ROVI) to see how Mr A managed with the bath lift. A ROVI looks at aspects of a visually impaired person’s everyday life to assess how their needs can be met. To date this assessment has not taken place. Mr A is frustrated with the process and feels it will just keep going on without him ever being referred for a DFG.
- The Council has told the Ombudsmen the planned joint visit with the ROVI was to establish if Mr A could use bathing equipment safely and independently, as he had stated that his visual impairment would prevent this.
- This has been a frustrating period for Mr A that has now gone on for over a year. However, we assess if this is a case where there is a realistic prospect of achieving an outcome through investigation which Mr A has not already been offered by the Council. In addition, there should be some indication there has been fault that has led to the difficulties Mr A is suffering.
- The incremental approach the Council takes is proportionate as with a limited budget there may be measures that can meet a person’s needs short of those that need a DFG. It is also fair for the Council to assess how a person manages with the equipment before it decides whether a referral for a DFG is necessary.
- Mr A is understandably reluctant to be ‘seen to fail’ as he has put it and the Council has tried to reassure him on this point. However, I feel the Council has acted in a proportionate and reasonable manner in offering this assessment to see how Mr A manages with the bath lift before it decides on the next step. In addition, its ‘Occupational Therapy including Adaptations and Equipment’ policy states:
“the equipment being recommended must be trialled with the person to ensure that it is suitable”
- In addition, it would not be proportionate to investigate this complaint as even if we did find a fault in the process, our remedy would most likely be to ask the Council to offer Mr A a reassessment, which it has already done.
- I decline to investigate this complaint as I have not found any indication of fault on the part of the Council and there is no more an investigation at this time could achieve for Mr A.
Investigator's decision on behalf of the Ombudsman