Decision : Upheld
Decision date : 20 Nov 2018
The Ombudsman's final decision:
Summary: Mrs X complains that the Council has delayed in making a decision about funding for an extension as an adaptation for her step-son who has disabilities. She says this delay has impacted on the child’s health and behaviour because they can no longer eat together as a family, and there is no room for activities. She also complains that the Council’s records are inaccurate, and about the way the Council has handled her complaint. The Ombudsman does not find fault with the Council for the delays because the Council is entitled to defer a decision if further assessments are needed. The Ombudsman finds fault with the Council for the way it handled Mrs X’s complaint. The Council has agreed to apologise to Mrs X and remind staff of the complaints procedure. The Ombudsman will not consider the part of Mrs X’s complaint about the Council’s records. This is because the Information Commissioner’s Office is better placed to consider this part of the complaint, and there are no good reasons for us to investigate.
- The complainant, who I refer to here as Mrs X, complains:
- that the Council has delayed in deciding about funding for an extension;
- that the Council’s records are not accurate; and,
- about the way the Council has handled her complaint.
- I have investigated parts a and c of Mrs X’s complaint. The final section of this statement contains my reasons for not investigating part b of the complaint.
The Ombudsman’s role and powers
- 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)
- 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)
- 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. (Local Government Act 1974, section 34(3), as amended)
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection and record-keeping. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Both Mrs X and the Council had an opportunity to comment on an earlier draft of this decision. I have considered all comments before making a final decision.
- I have considered the relevant legislation and statutory guidance. In particular, I have considered ‘Delivering Housing Adaptations for Disabled People: a detailed guide to related legislation, guidance and good practice’ issued by the Home Adaptations Consortium in 2013.
What I found
- Local authorities have a statutory duty to provide help for major adaptations to the homes of people with disabilities. This is usually done through a Disabled Facilities Grant (DFG). Owner-occupiers, local authority tenants and private tenants, among others, can apply to the local authority for a DFG to make their home more accessible.
- DFGs must be used to meet the cost of adapting a property to meet specific needs, for example providing ramps, installing a stair lift, or adapting/providing accessible washing facilities.
- If necessary, professionals may recommend an extension to the property to meet the needs of the person due to their disability. However, housing authorities may decide it is not ‘reasonable and practicable’ to provide major adaptations to a property. This could be because it is not cost effective or the layout of the property makes it impractical. In these cases, local authorities should consider the possibility of moving the person elsewhere, usually to a social or private housing tenancy.
- Housing authorities should seek agreement from the person for an adaptation, and properly consider the needs of the person, their carer(s), and their family to avoid difficulties and disruption to their support networks.
- The law says housing authorities shall consult with social services authorities to decide whether proposed works are ‘necessary and appropriate’. Housing authorities do not need to use an occupational therapist employed by a social services authority to assess need, and can use private contractors instead.
- The Care Act 2014 Statutory Guidance stresses the importance of joint working between housing authorities and social services.
- Article 3 of the Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 enables housing authorities to give discretionary assistance in any form (including grant, loan or equity release) for adaptations.
Council’s complaints procedure
- The Council has a two-stage corporate complaints procedure. Once a person has made a complaint the Council aims to acknowledge the complaint within three working days. The relevant service manager will respond to the complaint within 20 working days. If the complaint is complicated and the Council needs more time to investigate, it will contact the complainant and explain this.
- If the complainant is dissatisfied with the response, they can ask to escalate the complaint to the second stage of the complaints procedure. The Council’s procedure says details on how to do this are given in the stage one response letter or email.
- The procedure says the manager of the complaint resolution team aims to acknowledge the request for the complaint to be dealt with at stage two within three working days. The complaints manager will respond to the complaint within 20 working days. Again, if the complaint is complicated and the Council needs more time, it will communicate this to the complainant.
- If the complainant remains dissatisfied, they will be signposted to the Ombudsman.
- Mrs X’s husband, Mr X, has a son, B, from a previous relationship. B lives with Mr and Mrs X. B has a severe learning disability, autism, challenging behaviour, and significant behavioural difficulties. He has a care package in place with daily support provided by an agency. B has a Child in Need plan and an allocated social worker.
- In late 2016, B was admitted to hospital because his behaviour was causing him harm. An occupational therapist visited the family home and suggested converting the dining room into a ‘safe space’ for B in order to manage the risks due to his behaviour.
- This was implemented by the Council, and B was released from hospital in early 2017. The safe space resulted in the family losing the dining room. The occupational therapist suggested the family apply to the Council for funding for an extension in order to add a dining room to the property, because of the lack of dining facilities.
- At the end of March, the Council considered how it would fund an extension or conservatory to allow space for family dining and a crafting area for B, allowing B to remain living at home longer term.
- The Council decided that Mrs X was not eligible for a Disabled Facilities Grant. The housing department said it would not be able to fund an extension as the application did not meet the necessary criteria. The social services department said it did not have a budget to meet an application of this nature, so the Council decided funding would need to be found from elsewhere.
- In May 2017, the social worker conducted a Child in Need review home visit. The family discussed with the social worker the lack of dining space and the impact this was having on B’s eating. These concerns were passed to the management team for discussion at the Multi-Agency Resource Panel (MARP).
- In July and August, the Council received letters of support for the extension from B’s GP and from the Children and Adolescent Mental Health Service (CAMHS).
- In September 2017, Mrs X’s application for funding for an extension was discussed at the MARP. The panel noted that this application was not eligible for a DFG. The panel said that the extension to facilitate a dining area would not “help the situation”, given B’s needs. The panel looked at the occupational therapist’s assessment, but felt the safe space met B’s needs.
- The panel felt that Mr and Mrs X were not “necessarily able to manage” B’s challenging behaviour, and this identified a need for further discussion around B’s best interests. The outcome of the panel was that consideration was to be given to a residential placement.
- In October 2017, Mrs X complained to the Council about the delays in making a decision on her application for funding for the extension.
- In November, the Council sent Mrs X its stage one response, which had been completed by the social work team manager. The Council said funding was initially deferred by the MARP in September 2017. It had been agreed that a reassessment should be completed by the social worker by the beginning of December. The Council said the recommendations from that assessment were scheduled to be heard at the panel at the end of December, after which the Council hoped to be able to give Mrs X a definitive answer about the extension.
- Two days later, the next MARP was held. The Council said it would not support the ongoing carers’ arrangement or the extension request if Mr and Mrs X did not have the capability or capacity to parent B. The plan was to reduce the care package to give Mr and Mrs X an opportunity to meet B’s needs with less support. The Council felt there was no point in moving forward with the extension until that had been completed and an understanding of Mr and Mrs X’s parenting capacity had been obtained.
- A day later, Mrs X contacted the Council because she had not received the stage one response that had been sent a few days earlier. Mrs X agreed to the Council emailing her the response, which it did that day.
- In early December, the assessment was completed. The goal of the assessment was to see if Mr and Mrs X could care for B in the community, or whether alternative provision was required. The assessment noted that there had been a substantial care package in place for more than eight months, and there had been little change in B’s behaviour.
- The social worker found little evidence of problems with parenting capacity. He said that if B was to remain at home part of the care package would need to consider the application for an extension.
- In early January 2018, Mrs X emailed the Council asking for an update on her complaint. The social work team manager responded the next day, apologising for the delay, saying she would update her. The manager then sent Mrs X an email the following day.
- The manager said Mrs X’s application had been discussed at the pre-MARP meeting. She said:
- “The recommendation from this panel to the decision-making panel was that the extension/pod for the dining room was approved, to provide you with more space … It is anticipated that the decision will be ratified at the [next] Multi-Agency Resource Panel.”
- The next MARP was held at the end of January 2018. It was discussed that the carers’ agency intended to withdraw from this commissioned care package. It was felt that this would be an opportunity to see how Mr and Mrs X managed with less support. The panel recognised that this was a “less planned way of reducing support than would have been ideal”.
- The panel agreed to explore possible funding options, including funding half the cost and offering an interest free loan to the family for the remaining cost. Another option to be considered was placing a charging order on the home for the full amount. The panel said that if those options were not viable, then the social care and health departments “will agree” to fund the extension on a 50/50 split. It was noted that if B remained at home, the cost of an extension would be “vastly lower” than residential placement costs.
- A few days later, in early February, Mrs X emailed the team manager asking to be updated on the outcome of the panel. The manager replied the same day. She said her “understanding is that this was agreed up to the value of £16,000”, and asked Mrs X to obtain at least two quotes and submit them to the Council.
- Mrs X supplied the two quotes. After a number of internal communications, at the end of February the manager emailed Mrs X. She said:
- “It is my understanding that the panel are making further enquiries before coming to a definitive decision in relation to the funding … There will be further delays whilst things are negotiated and agreed.”
- The manager acknowledged that the delays were frustrating.
- In further communications between Mrs X and the manager, the manager acknowledged in early March 2018 that she had not been able to deal with Mrs X’s concerns or her complaint within timescales.
- A week later, in mid-March, the manager wrote to Mrs X. She said that during a meeting in which they were trying to resolve the funding matter for the extension, additional information was shared “which has led to the decision being made that the matter should formally be deferred pending completion of an updated assessment of need”. She apologised for the need to reassess, and appreciated it was a “huge disappointment”.
- The manager explained that there had been concerns about the Council’s ability to effect change on B’s behaviour, including concerns about Mr and Mrs X’s ability to translate the work being delivered about parenting. She said the school had expressed concerns about its ability to manage B. She said the Council needed to be clear about whether B’s needs were currently being met, and how best to meet them in the medium- to long-term, before investing in the works, or coming to a part-funding agreement with Mrs X.
- The manager said this reassessment would feed into the meeting at the end of June, and Mrs X would be notified of the outcome in July.
- Three days later, Mrs X told the Council she had not received this letter. Again, Mrs X consented for the Council to email this to her, which it did the same day.
- At the end of March, the next MARP was held. It noted there was still confusion about the application for funding. There had been a deterioration in B’s behaviour. The panel felt the situation was not moving forward and needed to be reassessed, with consideration of a residential school placement if the home package and school placement were breaking down, in order to meet B’s needs.
- In mid-April, the Council issued its stage two response. It said the process for making adaptations to homes is not straightforward: the Council must balance whether the eligibility criteria are met and if it is in the child’s best interests. It said that despite the request not being eligible for a DFG, this did not stop Mrs X’s request altogether.
- The Council said senior management from social services and health departments held further discussions looking at different options, which is why the Council asked Mrs X to get quotes. The Council said it was still considering the extension, but the decision had been deferred because of B’s unpredictable behaviour, concerns from the school, and concerns about Mr and Mrs X’s ability to manage adequately with a reduction in support.
- The Council noted there was an ongoing assessment. It said it was difficult to know if an extension was the best possible outcome. It said there was a lot to consider, and this did not mean the extension would not happen.
- In May 2018, Mrs X complained to the Ombudsman.
- In June, the next MARP was held. It noted that the care package was meant to have been reduced after the March MARP but this did not happen, for reasons unknown. (This could be because the carers agency ultimately did not withdraw from providing care, as the panel was previously told.) The outcome of this was that the care package was to be reduced.
- In July, the social worker’s assessment was completed. This noted a reduction in the care package. It also noted that the application for an extension was under review.
Delay in decision-making about funding
- Mrs X complains that the Council has delayed in deciding about funding for an extension (part a of the complaint). She says she was told in January 2018 that funding had been approved, but then was told a few weeks later that a decision was yet to be made.
- This is not entirely accurate: the social work team manager told Mrs X in January 2018 that the recommendation from the pre-MARP meeting was to approve the application for the extension. She said that it was anticipated that the decision would be ratified at the subsequent MARP a few weeks later. It is unfortunate that Mrs X may have misinterpreted this as confirmation the funding had been granted.
- At the MARP in January 2018, the panel agreed to explore different funding options. Shortly after this, the manager told Mrs X that it was her understanding it had been agreed, and Mrs X should obtain quotes. Given the MARP minutes which show that different funding options were being considered, I do not find fault with the Council for telling Mrs X to obtain quotes.
- While the manager’s comments may have misled Mrs X, I do not find that this is significant enough to constitute fault. The outcome of the panel was that different funding options were being considered. At the time, the manager’s comments were not inaccurate.
- In March, the Council told Mrs X it had received new information which meant a further assessment was needed and the decision had been deferred.
- Mrs X’s application for funding for an extension is not eligible for a Disabled Facilities Grant. Different Council departments (social care, housing and health) have worked together to see how best to fund this extension. This is in line with legislation and guidance. However, the Council also has to balance whether this is in the child’s best interests with the cost.
- The Council says that when the safe space was installed, Mr and Mrs X expressed concerns about losing the dining room. The Council says it told them that the “dining room was not considered essential in housing terms”. However, the Council noted that losing the dining room was impacting on B’s eating. The housing department asked the health and social care departments to consider the extension as the need resulted from a social care need, not a housing need.
- The Council says there are ongoing assessments about the viability in the medium- to long-term of Mr and Mrs X caring for B with a reduced care package. From this, the Council is considering “the prudence of investing” in an extension when there is a possibility of B having to access full time care and education outside the family home.
- The Council says that the further assessment on the impact of the reduction of the care package is being completed. It says, given previous fluctuations in managing B’s needs and following advice, the Council anticipates it will need six months to evidence the sustainability of change and the possible likelihood of community care. This six months will start when the care package is reduced to what is believed to be an acceptable level commensurate with B’s needs.
- The Council is reducing the care package to show that Mr and Mrs X can provide and sustain appropriate levels of care for B which would show that B can remain living in the home, and therefore it is financially prudent for the Council to invest in an extension. This is not fault.
- The Council has told the Ombudsman it is willing to put in place a plan to reduce the care package, which includes a timeframe for this reduction, and will state when the six months will start and end. This will give everyone involved, including the Multi Agency Resource Panel, a realistic understanding of when a decision will be made by and what the parameters are.
- The Council says its decision to defer the decision on the extension was due to concerns about its ability to keep B safe because the educational and care package was at risk of breakdown. The Council is entitled to make that decision.
- I do not find fault with the Council for the delays in deciding on this application for funding. The delays appear necessary to ensure that proper and thorough assessments take place to confirm that Mr and Mrs X will be able to care for B at home with a reduced support package. Once the support package has been reduced, and Mr and Mrs X have shown they can provide and sustain the necessary care for B, the Council will be able to make a robust and evidence-based decision on funding.
- Mrs X complains that she was not told about the additional information supplied by the school which affected the decision. This is not fault: the Council does not have to disclose when or what information is submitted by third parties. The Council communicated the decision to defer within an acceptable time of receiving the information and the decision being made.
- Mrs X complains that decisions are being made by people who do not know B, and who do not see B regularly. This is not fault.
- Mrs X complains about the way the Council has handled her complaint (part c of the complaint). She says the Council did not meet the timescales, and she has had to chase the Council for a response.
- There is no evidence that the Council acknowledged her complaint.
- The Council issued its stage one response within 20 working days, which adheres to its policy. Mrs X says she did not receive this letter. However, there is evidence that the Council sent this letter to the correct address within the timescales, so I do not find fault here.
- However, the stage one response did not state that it was the Council’s first-stage response to Mrs X’s complaint. Also, it did not give any details on how to escalate the complaint to stage two, should Mrs X wish to do so, or that this was an option available to her. This is not in line with the Council’s procedure.
- For this reason, there is no clear request from Mrs X to escalate her complaint to the next stage. However, it is clear from the manager’s response to Mrs X’s email in early January 2018 that the complaint was ongoing.
- I have seen no evidence of an acknowledgement that Mrs X’s complaint was being dealt with at stage two. The Council says that it acknowledged the complaint, once it “received the referral”, by letter and email at the end of March. I have not seen evidence of this.
- The Council says Mrs X responded by email the following day, “confirming the issues at stage two” and sent the Council signed authority a day later for the investigator to obtain details of matters relating to the NHS. I have not been provided with evidence of this. The Council says a response was then issued within corporate policy.
- The Council’s complaints procedure says it will respond within 20 working days or will let the complainant know if it needs more time to respond. The manager told Mrs X that she was aware in March 2018 that timescales had not been adhered to.
- It is clear the Council knew the complaint was ongoing in January 2018, and issued its stage two response in April. While there was some communication with Mrs X about this, it came well after 20 working days.
- The Council accepts that it was at fault. It says the fault “lay in the service area not identifying the further correspondence as a stage two request and responding to it accordingly resulting in delays in the Council dealing with stage two”. I agree with this.
- It is for these reasons that I find fault with the Council for the way it dealt with Mrs X’s complaint. This fault caused Mrs X injustice because of the time and trouble she spent chasing the Council for a response.
- Mrs X also complains that the Council did not discuss the investigation with her before it issued its stage two response. This is not fault. There is nothing in the Council’s complaints procedure that says it will discuss the investigation with the complainant before issuing a stage two response.
- Within four weeks, the Council has agreed to write to Mrs X to apologise for the fault in the way it handled her complaint and the injustice this has caused.
- Within three months, the Council has agreed to remind managers who deal with complaints of the complaints procedure, particularly the need to tell complainants how to escalate complaints to stage two of the process.
- The Ombudsman will need to see evidence that these have been done.
- I have completed my investigation. I uphold part c of Mrs X’s complaint: the Council was at fault for the way it handled her complaint, and I have recommended that the Council takes action to remedy this.
- I do not uphold part a of Mrs X’s complaint because there is no evidence of fault in the delays in making a decision regarding Mrs X’s application for funding for an extension.
Parts of the complaint that I did not investigate
- Mrs X complains that the Council’s records are not accurate (part b of the complaint). Firstly, this part of Mrs X’s complaint arose out of the Council’s stage two response to her complaint. She has not complained directly to the Council about these inaccuracies. Because this has not gone through the statutory complaints procedure, the Council has not had an opportunity to address this part of her complaint. For this reason, the Ombudsman is not able to look at this part of her complaint because it is premature.
- Secondly, and more importantly, the Ombudsman is not able to look at this part of Mrs X’s complaint in any event. This is because complaints about records, data and amending records are better placed with the Information Commissioner. Should Mrs X wish to take this complaint further, she should refer the matter to the Information Commissioner’s Office.
- It is my view that there are no good reasons for the Ombudsman to investigate this part of Mrs X’s complaint.
Investigator's decision on behalf of the Ombudsman