The Ombudsman's final decision:
Summary: there was no fault in the way the Council considered Mrs X’s appeal against its decision to seek repayment of a Renovation Grant paid to her father.
- Mrs X and her brother are the executors and beneficiaries of their late father’s estate.
- They complain about the way the Council considered their appeal against a decision to require repayment of a Renovation Grant awarded to her late father, Mr Y, because one of the grant conditions was breached.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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. (Local Government Act 1974, section 34(3), 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)
How I considered this complaint
- I have spoken to Mrs X and considered all the documents she provided with her complaint. I have considered the Council’s reply to my enquiries and the grants policy in force at the relevant time. I have read Mrs X’s appeal statements and the Council’s responses.
- I have written to Mrs X and the Council with my draft decision and considered their comments.
What I found
- The Regulatory Reform (Housing Assistance) (England and Wales) Order gives councils the discretionary power to provide financial and practical help for the repair, improvement and adaptation of homes.
- The Order requires councils to:
- give the prospective grant recipient a written statement of the terms and conditions under which any help will be given;
- ensure the recipient has received appropriate advice and information about any obligations they will have to fulfil if they receive help from the council.
The Council’s grants policy
- The Council adopted a new housing renewal policy in May 2003. This policy was in force at the time it approved Mr Y’s application for a Renovation Grant.
- The policy imposed certain conditions on Renovation Grants which applied for a period of ten years from the date the Council certified the grant works had been satisfactorily completed. I shall refer to this as the “certified date”.
- One condition required repayment of the grant to the Council if the property was sold or disposed of within ten years of the certified date. There are some exempted disposals set out in the policy none of which apply in this case.
- Another grant condition requires the grant recipient, or a family member, to occupy the property as his or her home for a period of ten years from the certified date. This is referred to as the “occupation condition”.
- The grant conditions are registered as a local land charge and apply to the grant recipient and any future owner of the property.
- The policy includes a two-stage appeals procedure if the grant recipient (or his or her personal representative) wishes to challenge any decision, including repayment of the grant.
- Mr X applied for a Renovation Grant to carry out structural repairs to his home on 9 March 2004. Mr Y was in his late seventies at the time. He and his wife owned the property.
- A grant officer visited Mr X at home to complete the forms. Mr X signed a Certificate of Future Occupation. By signing the form, he confirmed he had a legal interest in the property as an owner. The form also included the following statement:
“I hereby certify that:
2. I intend that throughout the Housing Assistance grant period (10 years) or a member of my family intend to live in the dwelling as my (or that member’s) only residence”.
3. I understand that if a Housing Assistance grant is approved, conditions as to future occupation and disposal of the dwelling (10 years) will apply and that in the event of a breach of those conditions, the grant will be repayable to the local authority in accordance with the policy.”
- Mr X also signed a grant application form during the officer’s visit. One of the statements on the form was:
- “I confirm I have lived and owned the dwelling for which I am applying for grants assistance for a minimum of 3 years and understand there are 10 year conditions as to repayment of grant should a breach occur….”
- Mrs X says her father was not given a copy of the certificate of future occupation or the grant application form. She did not find them with his documents when she later administered his estate.
- After the Council decided to seek repayment of the grant, Mrs X expressed some doubts about whether her father had mental capacity to understand the grant conditions when he signed the forms in 2004. She says he was elderly and had many serious medical conditions. He had suffered a stroke in 2005 and had a heart condition. She did not think he could reasonably be expected to remember all the grant conditions without being given a copy of the forms. In late 2014 he was diagnosed with a form of dementia that could have affected his mental capacity some years earlier.
- The law presumes that someone has capacity to make a decision unless there is evidence to the contrary. The Council says there is nothing in the records to indicate Mr X lacked capacity at the time he made the grant application and signed the forms. The diagnosis of dementia was not made until ten years later. It could not assume he lacked capacity simply because he was elderly and had multiple medical conditions.
- In September 2005 the Council approved Mr Y’s application for a Renovation Grant. The original grant was £22,658.29 but a further £2,905.18 was approved in March 2006 for extra unforeseen works. The total paid was £25,563.17.
- The Council sent Mr Y a letter and grant approval notice in September 2005 and again in March 2006 when the additional grant was approved. Both letters stated that the grant approval notice and information about the grant conditions were enclosed.
- Mrs X sent me the grant approval notices which she found with her father’s documents. They confirm the amount of the grant and the eligible grant works. They also state:
- “As from the date certified by the Council as being the date on which the dwelling becomes fit for occupation the 10 year grant conditions as to repayment on disposal and occupation condition become operative for the stated period (10 years). Details of the conditions are attached.”
- financial hardship (repayment of the grant would cause financial hardship);
- employment (need to sell property to seek or take up employment);
- health and wellbeing (need to sell due to the physical or mental health of the relevant person);
- provision of care (need to move to give or provide care due to disability or infirmity);
- overcrowding (need to move to a large property to meet needs of household);
- proceeds of sale are less than amount of grant due to be repaid;
- property is sold to a local authority or registered provider of social housing;
- property sold by someone who inherits the property and the property was still occupied at the certified date
- On the facts, the grant condition requiring the property to be occupied by Mr Y or a family member for ten years from 22 June 2006 was breached. This condition expired on 22 June 2016 and the property was left unoccupied after probate was granted on 29 May 2015. The Council therefore correctly decided there was a breach of condition.
- Mrs X is concerned that Mr Y may have lacked capacity to make the grant application in 2004. She first raised these concerns in 2017 when the Council sought repayment of the grant. Mr X managed his own financial affairs and property in 2004 and nobody had power of attorney. The Council properly considered the medical evidence Mrs X submitted. It concluded Mr Y did not have a diagnosed mental health condition that would have affected his mental capacity at the time he made the grant application and signed the forms. It could not assume from the fact Mr Y was diagnosed with dementia in late 2014 that he already had this condition and lacked mental capacity when he signed the grant forms in 2004.
- I have considered whether the Council gave Mr Y sufficient information about the terms and conditions for the grant. I would not expect the Council to give the applicant a copy of the application form and future occupation certificate unless this was requested. At this stage, it is purely an application for assistance and the grant may or may not be approved. However, it is important for applicants to be given written information about the grant conditions and repayment at the approval stage before they decide whether to accept the grant offer and proceed with the works.
- The Council says it enclosed a pack of information with the approval notices it sent to Mr Y which clearly explained the grant conditions and repayment rules. It has provided a specimen copy of this information which contains sufficiently detailed information. The covering letters sent to Mr Y also refer to enclosed information. Mrs X believes her father did not receive this information because it was not kept with the grant approval notices in the box where he kept important documents.
- There is insufficient evidence for me to make a finding about whether the Council failed to send Mr Y this information with the grant approval notices. The forms were standard pre-printed documents sent as part of an information pack. A copy of standard information sheets would not be put in the applicant’s case records. Mrs X says Mr Y always kept important documents together in one place. However, they could have become separated or may not have been kept. I do not consider further enquiries will provide any conclusive evidence because the application was made more than ten years ago.
- It is important to note that the wording on the grant approval notices, which Mrs X confirms Mr Y did receive, refer to more than one grant condition. It mentions a disposal condition and an occupation condition and says more detailed information was attached. If that information was not with Mr Y’s papers, the executors could have made enquiries to the Council to ensure they fully understood all the grant conditions before deciding what to do with the property. Instead they relied on the information Mr Y had given them before he passed away that there was only one grant condition relating to disposal of the property. Given the significant amount of the grant, it would have been prudent to check the grant conditions with the Council.
- I see no evidence of fault in the way the Council considered the appeal at both stages of its appeals procedure. The officers considered all the evidence Mrs X and her brother submitted. They correctly concluded there had been a breach of the occupation condition. They then went on to examine the circumstances and supporting evidence to decide if they were sufficiently compelling to exercise discretion and waive repayment of the grant. They decided not to do so. That is a decision the Council was entitled to make and the Ombudsman cannot criticise a decision which was properly made because Mrs X disagrees with it.
- I found no evidence of fault in the way the Council considered Mrs X’s appeal against its decision to seek repayment of the grant.
Investigator's decision on behalf of the Ombudsman