Summary: Mr B complained the Council delayed in assessing his family’s need for an extra bedroom for their disabled child. He also complained the assessment did not result in it supporting an application for a Disabled Facilities Grant (DFG) to create an extra bedroom. We upheld the complaint, finding the Council at fault for delay and not sufficiently considering the impact of its proposal that Mr B should use a reception room as a bedroom instead. This caused injustice to Mr B as distress. We also found fault with a procedure the Council currently has in place with Mr B’s local housing authority (a Borough Council) to consider potential DFG applications. The Council accepted these findings and at the end of this statement, we set out the actions it has agreed to improve its service and remedy the injustice caused to Mr B.

The complaint

1. Mr B complained the Council:

• delayed in assessing his family’s need to create an extra bedroom, for his disabled child ‘X’;
• refused to support an application for a Disabled Facilities Grant (DFG), saying Mr B’s other two children could instead sleep in a downstairs reception room.

2. Mr B said the Council’s decision did not take account of the needs of the family. In particular the stress caused to them by meeting X’s needs. The family used the reception room as a sensory playroom for X. Mr B said this relieved some of that stress. So, he considered it unreasonable the Council expected the family to manage without it.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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)
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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
9. I also gave Mr B and the Council chance to comment on a draft decision statement. I took account of any comments they made, or further evidence they provided, before issuing this final decision statement.

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What I found

Relevant law and Government guidance

10. Councils which act as housing authorities (including Borough Councils but not County Councils), have a statutory duty to give grants to disabled people for certain adaptations. They do so under the terms of the Housing Grants, Construction and Regeneration Act 1996 (‘the Act’). Before approving a grant, the housing authority must satisfy itself the work is necessary, meets the disabled person’s needs, and is reasonable and practicable to carry out.
11. A housing authority can only award a DFG for one of eight reasons set out in section 23 of the Act. This includes for “facilitating access by the disabled occupant to, or providing for the disabled occupant, a room used or usable for sleeping”.
12. In March 2022 the government issued non-statutory guidance “Disabled Facilities Grant (DFG) Delivery: Guidance for local authorities in England”. This guidance advises councils in England on how they can effectively and efficiently deliver DFGs.
13. The guidance identifies five key stages to delivering home adaptations:

• Stage 1: First contact with the service. Councils should ensure the public has access to information and advice about the DFG process.
• Stage 2: First contact to assessment and identification of the relevant works. An occupational therapist (OT) will assess the person’s needs and potential solutions through home adaptations.
• Stage 3: Identification of the relevant works to submission of the formal grant application. The person makes an application providing designs and costing for the works (where necessary).
• Stage 4: Grant application to grant decision. The Council will check the application and issue a decision letter. If a council refuses a grant, it must explain why.
• Stage 5: Approval of grant to completion of works.

14. A council should decide a grant application as soon as reasonably practicable. In addition, the timescales for moving through the stages will depend on the urgency and complexity of works required. 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.

15. Government guidance says housing authorities must consult social services authorities. Where a borough council is responsible for DFGs, the occupational therapist may work for a county council. An OT will usually assess need (step two in paragraph 13). The guidance states however “it is always the district council who must decide an application”.
16. Government guidance also says: “whichever team makes the initial assessment, the final decision on awarding grant remains with the local housing authority. Decision making panel meetings that do not include the housing authority are strongly discouraged.”

Relevant council policies

17. The Council has a policy used by staff “for recommending minor and major adaptations”. It notes in Section 1 that local housing authorities (district and borough councils) award DFGs when satisfied the proposed works are “necessary and appropriate” for the applicant. It says that in considering this test, the housing authorities “consult” with the Council’s OT service.
18. The policy then runs through the purposes for which an applicant can use a DFG. Section 8 of the policy considers where an applicant proposes a need for an extra bedroom. Here the Council explains its approach as follows:

• that it will not consider the need for a bedroom where a disabled child “already has access to suitable sleeping / bedroom facilities”;
• that it will consider supporting an application to create a bedroom if “ground floor reception rooms are too small for a bedroom". Also, if the use of a reception room as a bedroom will have “a detrimental effect on family life”;
• that it will consider supporting an application for a loft conversion, “when a child is sharing a bedroom, and this is unsafe due to the child’s challenging behaviour which puts the person sharing the bedroom at risk”. The Council says it will only do so after “all other practical options/solutions have been exhausted”.

19. Mr B’s local Borough Council also has a “Private Sector Grants and Assistance Policy”. This says that where a resident of the Borough wants to apply for a DFG they should first contact “occupational therapy” within local social services. It says that service will “make a referral to the [Borough] Council setting out what work they consider to be necessary and appropriate to meet the needs of the disabled person”. Only once the Borough Council has received this referral can a DFG application proceed. The Borough Council says it will next inspect the property to check the proposed works are “necessary and appropriate” and “reasonable and practicable”.
20. On its website the Borough Council says that “assessments are made by a Nottingham County Council Occupational Therapist before our Private Sector Housing Team administers the grant finance”. It provides contact details for the County Council OT service.
21. The County does not tell the Borough Council of assessments it undertakes that do not result in a recommendation to consider a DFG.
22. When the County receives a referral that a child may benefit from adaptations to their home, it aims to triage those within two days. It considers some requests urgently, for example where a child might be at end of life. It refers some cases for what it describes as “proportionate assessments”. These are for minor adaptations or other straightforward cases. More complex cases have an OT assessment.
23. The Council says in the recent years it has lost six experienced OTs and this has contributed to delays. While it has recruited four new OTs, and reduced its backlog, the current wait time for a non-urgent OT assessment is 14 months. The Council points to research undertaken by the Royal College of Occupational Therapists which shows a nationwide shortage of OTs.

The key facts

24. Mr B lives in a Borough Council area, located within the County. He lives in a property with two-bedrooms and two reception rooms. As well as Mr B the family comprises his wife and three dependent children, all the same sex. Currently, the eldest child ‘X’ shares one bedroom with the middle child ‘Y’. The youngest child ‘Z’ shares a bedroom with Mr B and his wife.
25. X has a disability. Their needs mean they sleep poorly and so often disturb other members of the family at night. Z also has some additional needs and they too often disturb Mr and Mrs B at night.
26. To help meet their needs, Mr B converted one of two downstairs reception rooms into a sensory playroom. Mr B says this playroom helps distract X from other behaviours which potentially pose a risk to them or to others. Being downstairs, Mr or Mrs B can also keep a close eye on X when they are using it. Mr B describes the room as a calming space and a “sanctuary” for X. He says in setting up the sensory playroom he took advice from X’s doctors who recommended that X needed structured play and supervision. Also, to help with sleep disturbance that X should not have toys in their bedroom and so should play in a separate area.
27. Both Y and Z also make use of the playroom. Mr B says it is also of particular benefit to Z given their additional needs.
28. In June 2022 a Council Occupational Therapy Assistant (OTA) reviewed X’s need for minor adaptations in the home to support their bathing and safe use of stairs. They carried out a ‘proportionate assessment’ during which Mr and Mrs B explained they would like to create a third bedroom for X in the property, by having a loft conversion. The assessment noted at that time the family used what is now the sensory playroom as a dining room.
29. The OTA referred the request for a loft conversion for an occupational therapy assessment. The Council did not complete this until January 2024. The assessment comprised an OT first speaking to Mr and Mrs B over the telephone. Then they visited their home and spent around an hour there.
30. The OT’s assessment paperwork provided details of X’s needs and how these impacted on Mr and Mrs B and X’s siblings. It also provided detail about the home environment and minor adaptations made to support X. It noted “the second reception room in the family home is currently being used as a play space for the children to provide [X] with a quiet area when [they] need it”.
31. The OT decided not to support an application for a DFG, finding the work requested was not “necessary or appropriate”. In providing reasons for their decision, they said: “in line with Nottinghamshire County Council’s Guidance for Recommending Minor and Major Adaptations, it is recommended that one of the reception rooms is used as a bedroom shared by [Y] and [Z].”.
32. Mr B complained about this decision. He explained how long the family waited for the assessment and that he found it too short when the OT visited. Mr B explained how the family used the second reception room as a sensory play room, for X and their siblings.
33. In its reply the Council apologised for the delay in completing its assessment, saying waiting times for OT assessments were between 17 and 19 months. It said that once begun, its assessment had lasted an average time. It defended the outcome of the assessment. It also noted the OT had referred X’s case to a specialist support team to see what it might offer to manage “some of [X’s] sleep and behaviour at home”.
34. Mr B escalated his complaint. He said the Council’s decision failed to take account of the impact to family life, if they could no longer use the reception room as a sensory playroom. His also said it was impractical for Z to be downstairs, away from Mr and Mrs B, given their needs.
35. In its final reply the Council maintained its decision followed its policy. The Council quoted extracts from its local policy, Government guidance and the Borough Council’s policy.

My findings

36. I divided my investigation into three parts. First, to look at Council policy when it receives an approach from someone seeking adaptations for which they will need to apply to their local housing authority for a DFG. Second, to consider the time taken by the Council to assess Mr B’s case. Third, to consider the outcome of the Council’s assessment.

Findings on Council policy

37. The law clearly identifies the decision maker in cases where someone seeks a DFG as the housing authority. The County Council is not a housing authority. Mr B’s housing authority is instead, his local Borough Council.
38. The decision to refuse Mr B a DFG should therefore have come from the Borough Council. Or, if the County Council acted for the Borough Council in rejecting certain requests for DFGs, then it should have made it clear it was doing so. Current Council policy identified it acted for the Borough Council when it assessed someone’s need for adaptations. But its decision making in this case, did not make this clear (and nor did its complaint responses). That was a fault.
39. Further, I was concerned the Council shared no details of the assessments it undertook, where it decided adaptations were not ‘necessary and appropriate’, with the housing authorities in its area. Government guidance strongly encourages that housing authorities should be part of decision making if a DFG will not proceed, because of concerns that work requested is not ‘necessary or appropriate’. I considered a housing authority should at least want to know how many potential applicants ask about major adaptations potentially suitable for a DFG, and the outcome of their requests. I considered it was fault the Council did not share any such details with the housing authorities in its area.
40. There should also be a route of redress to the housing authority, when a potential DFG applicant learns the County OT does not consider they need major adaptations and the applicant disagrees. As noted above a housing authority must consult and give weight to the view of a County OT. But a complaint a person cannot receive a DFG because an OT decides an adaptation is not ‘necessary or appropriate’ is one for the housing authority, as the OT service acts on its behalf. It is only complaints about matters such as a delay in completing an assessment, or an OT’s conduct on a visit, that should fall exclusively under the County’s complaint procedure. So, it was further fault here the housing authority did not know of Mr B’s complaint about the outcome of the assessment.
41. I could not say these faults caused Mr B an injustice. But at the end of this statement, I set out how the Council has agreed to work with local housing authorities in the future, to ensure no repeat.

Findings on the delays in Assessment

42. I was concerned at the 19-month delay Mr B experienced in waiting for an OT assessment. Government guidance sets out that even for the most complex DFG projects, these should aim to complete within six months. There is clearly no prospect of any DFG completing in this timescale where stage two of the five-stage process takes so long. While I noted the Council had succeeded in bringing down delays in OT assessments over the past 12 months they were still 14 months on average. That was far too long for anyone seeking a DFG to wait for an OT assessment.
43. I recognised the reasons behind this delay lay partly outside the Council’s control. It was unfortunate it lost several experienced staff in a short time and that it had experienced recruitment difficulties given a nationwide shortage of qualified OTs. However, the delay still amounted to a service failure.
44. This caused Mr B an injustice. For while he waited for an assessment, he did know its likely outcome. That uncertainty was a cause of distress. I recognised the Council had apologised for the delay. But I did not consider this was sufficient and at the end of this statement, I set out the further steps the Council agreed to remedy this injustice.
45. I also set out what the Council agreed to do, to try and improve its performance in this area.

Findings on the OT assessment

46. I found the Council should have provided more reasoning to Mr B when it decided it was not ‘necessary or appropriate’ to support an application for a loft conversion. The Council told him more than once it considered its position was in line with its policy. However, its responses did not relate the facts of the case to relevant policy extracts.
47. My own analysis started by noting Council policy refers to the possibility of supporting a loft conversion where the needs of a disabled occupier may put at risk someone else. I considered there was ample evidence of X’s sleep disturbance and this caused harm to Y, with whom X shared a room. So, the Council could consider supporting an extra bedroom for the family, to enable X to have their own bedroom.
48. Next, the policy required the Council to consider if there was another way to meet X’s need for a room of their own. So, I found no inherent fault in the Council considering if Y and Z might sleep in one of the downstairs reception rooms instead. I also noted here the downstairs reception room was big enough for use as a bedroom for two children.
49. But the policy also made clear the Council needed to consider the impact of re-purposing a room this way. It needed to ask if doing so would have a “detrimental effect on family life”.
50. I did not find the Council provided enough evidence to show how it considered this question. Mr B gave reasons why he considered X benefited from the use of the reception room as a sensory playroom. He said that in creating the room, he took account of medical advice that X needed a space for structured play and they should not have toys in their bedroom. While I did not see this advice in writing, I noted advice for parents of children with X’s disability often stressed the need for calming environments. In addition, Mr B raised concerns about the practicality of Z being on a different floor to their parents, given their needs.
51. I did not find the Council had considered these matters in its decision making. And because it had not done so, I found fault with its decision that it could not support a DFG, based on Mr B re-purposing the reception room instead. It had not taken all relevant considerations into account in reaching this decision.
52. This caused further injustice to Mr B. Because he could not know if the outcome of the assessment would have been the same but for the fault. That uncertainty being a further source of distress. I set out below the action the Council agreed to remedy that injustice.

Agreed Action

53. The Council agreed that to remedy the injustice caused to Mr B, that it would, within 20 working days of this decision provide him with:
1. an apology, accepting the findings of this investigation (see paragraph 54);
2. a symbolic payment of £500 for the distress caused by the delay in its OT assessment and its inadequate consideration of the impact of its proposal that Mr B re-purpose a reception room as a bedroom;
3. a commitment to review its decision not to support a DFG for an attic conversion. This review will give specific consideration to the impact of re-purposing the downstairs reception room and the impact this will have on family life (see also paragraph 55).
54. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making its apology.
55. The review agreed at paragraph 53c) will complete within two months of this decision. This timescale will allow Mr B to make representations direct to the Council on the impact of re-purposing the reception room and provide any supporting evidence, such as from the medical professionals who support X. The review will be completed by an officer not previously involved in the events covered by this complaint. As part of the review the Council will also liaise with the relevant Borough Council, on whose behalf the Council completes such assessments, and invite its involvement also.
56. In addition, the Council agreed the following service improvements, to address my concerns about the lack of liaison with local housing authorities and delays in OT assessments. Within three months of this decision, it will:
1. share this decision statement with officers responsible for DFGs in all the housing authorities it works with. In doing so it will also propose a countywide policy that will address how it will:
1. ensure that all people who ask for consideration of major adaptations that may fall under the DFG regime, know that an assessment which finds such works are not ‘necessary or appropriate’ is one undertaken on behalf of the housing authority;
2. share information with local housing authorities to make them aware of any delays in OT assessments and efforts being made to tackle these (see also point b) below);
3. share the outcome of assessments where it has decided major adaptations requested are not ‘necessary or appropriate’;
4. ensure unsuccessful applicants know of their right to contact their housing authority if dissatisfied with such decisions, as well as using the County’s complaint procedure;
2. bring this decision statement to attention of the relevant committee of elected Members with oversight of its OT service. In doing so, officers will apprise members of Government guidance which sets out timescales for making adaptations under the DFG regime and the delays in the OT service meaning that currently these cannot be met. Officers will propose to Members how the Council can reduce these delays to levels where it can meet Government expectations, or as close as reasonably practicable.
57. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

58. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mr B. The Council accepted this finding and agreed action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman