Summary: Ms B says the Council’s criteria for deciding children’s disabled facilities grants is discriminatory and has delayed her access to the process. The Council has recognised its policy could be misleading and needs reviewing. We do not know whether this means it would have dealt with Ms B’s application any differently. When dealing with Ms B’s complaint the Council did not allow sufficient time for Ms B to respond and clarify the complaint summary, but this was resolved at the next stage of the complaint process. To put things right the Council will apologise to Ms B, review its policy and processes, and progress her application without delay.

The complaint

1. The complainant, who I will call Ms B, says the Council’s criteria to access the Children’s Disability Service’s Occupational Therapy Team discriminates against those with a mental impairment rather than a physical impairment. The criteria requires referrals for children with sensory needs and/or challenging behaviour seeking a safe space or similar provision to show active intervention from relevant services and to provide a supporting letter from professionals recommending provision. Ms B complains by wanting this evidence the Council is not meeting its legal duties to provide services to meet the needs of a disabled child. Ms B feels the Council is gatekeeping by stalling at this stage, rather than accepting the application for a Disabled Facilities Grant, and then assessing the application to decide whether it is necessary and appropriate.
2. Ms B also complains about the Council’s complaint process. Ms B says the Council does not allow sufficient time for a complainant to check and respond to the complaint summary before issuing its complaint response, as in her case she received the complaint summary and two days later the full response. Ms B says the Council should amend its process to allow seven days after sending the complaint summary to give a complainant time to respond. Ms B brought this to the Council’s attention and is unhappy with comments made about her by Council staff saying she made an issue of receiving the complaint response too quickly. Ms B would like the Council to apologise for these comments.
3. Ms B says the delays in accessing the Disabled Facilities Grant process cause distress and worry about her son’s safety and that of his siblings. Ms B feels the Council is unfair in not accepting the family has in place proper strategies to manage her son’s behaviour, but as he gets older and more physical, they need adaptations to keep him and his siblings safe. Ms B feels negatively judged and unsupported by the Council.

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The Ombudsman’s role and powers

4. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I considered:

• Information provided by Ms B and the Council.
• The Council’s ‘Children’s Occupational Therapy Team’s Service Criteria’
• The Housing Grants, Construction and Regeneration Act 1996.
• The ‘Home Adaptations for Disabled People: A Detailed Guide to Related Legislation, Guidance and Good Practice’ guidance published by the Home Adaptations Consortium.
• The ‘Disabled Facilities Grant delivery: guidance for local authorities in England’ guidance published by the Department for Levelling Up, Housing and Communities and the Department of Health and Social Care.
• The Equality Act 2010.

8. Ms B 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

9. Ms B’s son (D) is neurodiverse, D has autism spectrum disorder (ASD), learning difficulties, sensory processing disorder (SPD) and displays challenging behaviour.

What happened

Disabled Facilities Grant

10. Ms B applied for a Disabled Facilities Grant (DFG) to create a ‘safe space’ in her home for D, it would also make the home safe for D’s three siblings.
11. Under the Housing Grants, Construction and Regeneration Act 1996, councils can award DFG’s to people whose disability means their home needs adaptation. If the person applying meets the qualifying criteria the council must award the grant. One purpose of a DFG given in the relevant law is for making the home safe for the disabled occupant and other persons residing with him. So, Ms B was applying for relevant works, and her application falls within the category of applications that must be approved.
12. A council must decide if the proposed works are necessary and appropriate to meet the needs of the disabled person. It must also be satisfied it is reasonable and practicable to carry out the works given the condition of the property to be adapted. Councils only approve grants for work they decide is necessary. An occupational therapist usually assesses need.
13. The Council’s process is for its Children’s Disability Service’s Occupational Therapy Team to provide adaptations for disabled children. It has a list of eligibility criteria. Section nine requires the applicant to have accessed relevant services to promote skill acquisition and ensure the least restrictive approach. This is then broken down into subsections 9.1 and 9.2. Section 9.1 states “Referrals for children with sensory needs and/or challenging behaviour requesting a safe space or similar provision need to demonstrate active intervention from relevant services with evidence of sensory/behavioural strategies implemented alongside supporting letter from professionals involved advocating the need for provision.”
14. The Council did not progress Ms B’s application because it did not have the required supporting evidence.
15. Ms B says this is unfair because it treats D differently from those with a physical disability. The Council says it must exhaust all avenues before agreeing to adaptations to ensure the least restrictive option is used.
16. The Council says it screens applications so it can direct applicants to the most appropriate services in the first instance, that may be able to offer a better, less restrictive solution to support the independence of the child. By screening it can also manage expectations at an early stage, rather than progressing and then halting for further actions to be tried first, so that it can be sure adaptations are necessary and appropriate. The Council explain this screening does not treat those with sensory/behavioural issues differently. If someone with physical disabilities requested a ground floor bedroom and bathroom, the Council would ask for information to show the child had engaged with physiotherapy services and reached their maximum potential so would be unlikely to ever manage stairs.
17. Ms B explains the family already use suggested methods to manage D’s behaviour, that relevant professionals have been involved, and the wait list to be seen by the children and adolescent mental health services (CAMHS) is so long that it is not fair to redirect people in need. The Council says although professionals have been involved, there was no letter from a professional supporting the need for adaptations.
18. Ms B has now applied again for a DFG with further information including a letter of support, which the Council is considering.

Complaint

19. Ms B made her formal complaint to the Council, who provided a summary and asked Ms B to contact it if the summary did not accurately express her concerns. Ms B received the summary three days after the date showing on the letter but accepts this was not fault of the Council as it evidenced it sent it on the day dated.
20. Ms B quickly responded to clarify her complaint; however, the Council had already completed its complaint response, three days after sending the summary. Ms B explained the Council had based its response on an inaccurate summary. In an internal email the Council commented it thought Ms B was being a bit unreasonable as she had three days and not the one day she originally quoted (because Ms B did not receive the summary on the day it was sent). The Council also commented Ms B made an issue of receiving the complaint response too quickly.
21. The Council incorporated the concerns into the Stage 2 complaint response.

Was there fault causing injustice?

22. I must now consider whether there is fault in the Council’s process which has caused injustice to Ms B and D.
23. Firstly, I recognise that friends and family supporting disabled children daily are expert in managing their needs. Ms B applied for the DFG in genuine need and believing they had tried everything else. As D has grown older, and physically larger and stronger, it has become more difficult to manage his behaviour with strategies that worked previously. I therefore understand Ms B’s disappointment when the Council rejected her application based on looking at the papers provided and having not visited the home to carry out any form of assessment or suggest equipment/adaptations that would help.
24. While I recognise Ms B’s disappointment, that is not to say the Council’s actions were wrong.
25. Councils can decide themselves the form and particulars required for DFG applications. Government guidance says, “it is for an authority to decide its own application processes in line with its local assistance policy”. However, that discretion must be reflected in accordance with usual public law principles such as reasonableness. The Housing Adaptations Consortium guidance also makes clear that councils should not in any way attempt to create obstacles to such a process.
26. The Council must also comply with the Equality Act 2010 and not discriminate against a disabled person. The Council would be discriminatory if it treats D unfavourably because of something arising in consequence of D’s disability, and it cannot show the treatment is a proportionate means of achieving a legitimate aim.
27. The Council’s policy does appear to treat people differently. It is only those with sensory needs/challenging behaviour/mental impairment that must have a letter of support. The Ombudsman cannot say the Council is acting in breach of the Equality Act 2010, only a court can make that legal decision. The Council makes strong arguments that its treatment is a proportionate means of achieving a legitimate aim. So, the Ombudsman cannot say the Council is at fault.
28. The Council requests a supporting letter from professionals to then assess the DFG application. This adds an extra stage to the process and makes it more difficult for those with mental impairment to access support, therefore creating an obstacle to the process, which might be unnecessary.
29. The Council accepts the wording of the policy is open to misrepresentation and it needs to review it, which it will do with the involvement of its legal team. Until the review is complete the Council is gathering additional information as part of the assessment process rather than before acceptance.
30. This is different to its response to Ms B, which said it had recently reviewed the policy and was satisfied with it. It is more likely than not the Council could have recognised at that stage what it has now recognised and could have potentially prevented Ms B the time and trouble complaining to the Ombudsman.
31. We cannot know whether because of the review the Council will amend its policy, and if it does whether it will be changed in a way that would have made a difference to how it processed Ms B’s application. Ms B has now had contact with CAMHS who at first said D would benefit from a referral to the Community Learning Disability Nursing team to provide positive behavioural support. The Council says this supports its actions, as there were still further avenues to try. D now has a supporting letter, and the Council is considering Ms B’s application for a DFG. This leaves Ms B with uncertainty over whether the Council could and should have processed her application sooner, and an ongoing feeling the Council has treated her unfairly.
32. The Council does not have a set timescale between sending the summary of complaint and issuing its stage 1 complaint response, so I cannot say issuing it in three days is fault. However, three days was not a sufficient length of time to allow the complainant to respond to the summary. This has not caused a significant injustice to Ms B, because the Council dealt with the issues at stage 2 of the process.
33. The Council’s comments about Ms B were not fair or reasonable. Ms B was not taking issue the Council had dealt with her complaint promptly, rather that it had not allowed time for her to comment on the complaint summary as it requested. There was no need for the Council to delay sending its stage 2 because of Ms B’s complaint about how it handled stage 1. At stage 2 the Council was not awaiting any further comments from Ms B as it had been when it issued the stage 1. The Council’s comments have caused Ms B some upset.

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Agreed action

34. To acknowledge the impact on Ms B, and to prevent future problems, the Council will:
1. Apologise to Ms B for not allowing enough time to respond to the complaint summary, for the comments it made that Ms B was unreasonable, and for not recognising sooner that it needs to review its policy.
2. Consider whether to set a timescale between sending the complaint summary and sending the complaint response. Or whether if a complaint response is ready quickly if staff should check the complainant has no comments to make on the summary before sending the complaint response.
3. Complete its review of its Children’s Occupational Therapy Team’s Service Criteria and implement any identified changes. Tell Ms B the outcome of the review.
4. Process Ms B’s Disabled Facilities Grant application as soon as possible and keep her informed of progress.
35. The Council should complete the apology within one month of the Ombudsman’s final decision, it should complete its reviews of its complaints process and policy within three months of the Ombudsman’s final decision. The Council should evidence its compliance to the Ombudsman.

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Final decision

36. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Ms B and to prevent future fault.

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Investigator's decision on behalf of the Ombudsman