Walsall Metropolitan Borough Council (15 017 583)

Category : Housing > Private housing

Decision : Upheld

Decision date : 22 Mar 2017

The Ombudsman's final decision:

Summary: There was some delay by the Council in processing Ms B’s application for a Disabled Facilities Grant and Empty Homes Loan. But this has not caused Ms B significant injustice, and there was no fault in the Council’s decision to refuse the loan. The Ombudsman has found no fault in respect of the concerns that Mr B has raised about the safety of Ms B’s current home, her requests for discretionary housing payments or the Council’s decision no longer to keep the recovery of Council Tax debts on hold.

The complaint

  1. Mr B complains that the Council placed his sister, Ms B, who has a severe disability, in unsuitable and unsafe temporary accommodation in 2011. He says it was also inappropriate for the Council to place her in a property where she would be subject to the “bedroom tax”.
  2. He complains that the Council delayed in responding to her applications for a Disabled Facilities Grant (DFG) and an Empty Homes Loan for works which would enable her to return to her home. It then refused those requests. He considers that Ms B has incurred a large Council Tax bill because of this delay.
  3. He says the Council will not keep to its earlier agreement not to seek recovery of Council Tax due on his sister's home before she can return there.
  4. He questions why the Council refused Ms B’s request for a Discretionary Housing Payment (DHP) to meet the shortfall in Ms B’s Council Tax but then agreed a payment in 2015.
  5. He has also complained about the reasons the Council gave for a compensation payment on his previous complaint to the Ombudsman.

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What I have investigated

  1. I have investigated Mr B’s complaints:
    • that his sister’s present accommodation is unsafe;
    • that the Council delayed in responding to his sister’s applications for a DFG and an Empty Homes Loan and its refusal of the loan;
    • that the Council will not keep to its agreement to delay recovering his sister’s Council Tax arrears; and
    • about its handling of her requests for DHP.
  2. The final section of this complaint sets out matters that I have not investigated.

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The Ombudsman’s role and powers

  1. 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)
  2. We may decide not to start or continue with an investigation if we believe it would be reasonable for the person to ask for a council review or appeal.
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

  1. I have considered Mr B’s written complaint on behalf of his sister and discussed his complaint with him. I have made enquiries of the Council and considered its response. I have also sent Mr B and the Council a draft decision and invited their comments.

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What I found

  1. Ms B has a severe physical disability and uses a wheelchair. She moved into her present temporary accommodation in a social housing property when she was discharged from a care home in 2011. She could not return to the home she owns because it did not meet her needs and it needed adaptations.
  2. Mr B and his sister were previously estranged, but he became involved due to her disability and circumstances. In 2011, he complained that the Council had not responded to his complaint that it had placed his sister in inappropriate residential accommodation. The Ombudsman upheld Mr B’s complaint about the delayed response and the Council agreed a £400 payment for his time and trouble.
  3. In 2013, Mr B asked the Council about getting a Disabled Facilities Grant to adapt Ms B’s home. He applied in August. The Council inspected the property and agreed to get back to him with specification for the works. It also needed to confirm that Ms B owned the property, as it was in her late mother’s name and there was a “caution” against the property in respect of a third party.
  4. Ms B had outstanding debts on her Council Tax account and owed the Council for overpayments of Housing Benefit. The Council had agreed to put Council Tax recovery action on hold until the move was resolved, but with the agreement that Mr B would make some payments when able. However, the temporary hold on the account expired and a summons was issued.
  5. In December, the interim Head of Revenues agreed to put the hold back on the account. He declined Mr B's proposal of using funds from future direct payments but suggested that the Council await Ms B’s move or he could try and help in resolving the matter.
  6. Mr B applied to the Land Registry in April 2014 to change the ownership of the property. In June, the caution was removed and the property registered in Ms B’s name.
  7. In September, a Housing Standards and Improvement officer contacted Mr B with proposed drawings for the works to be undertaken using the DFG. He confirmed that his sister wished to proceed.
  8. The officer confirmed that the cost of the DFG works would be £27,943.48. The schedule of works included:
    • a new bathroom extension on the ground floor;
    • a ramp to the front door;
    • kitchen adaptations; and
    • central heating including a combi-boiler.
  9. The officer explained that the Council would put a £10,000 charge on the property for 10 years. She also noted that, when officers had visited in August 2013, Mr B was undertaking repair works to bring the property up to a habitable condition. She said that, if that were not the case, Ms B could apply for a discretionary Empty Homes Loan. However, the fund was time limited, in high demand and resources could not be guaranteed.
  10. The officer asked about the current internal state of the property as the DFG was intrinsically linked to its condition. She explained that “if the property is not habitable, we would be unable to approve a DFG as it would not in the Council’s opinion be reasonable to do so”.
  11. Mr B said he had not undertaken any further works as he had been unaware of what grants may be available. He said the kitchen needed the main work, including a new floor screed and replacement brickwork, and the whole property needed rewiring and plastering. He said they would be interested in any available grants to bring the property up to the necessary standards.
  12. The officer sent Mr B a schedule of works. She said the Council might need to arrange another site visit with the technical officer to confirm whether there were any other works to be done under the DFG works schedule. She asked Mr B to have a look at the schedule and let her know what he thought.
  13. In February 2015, the former interim Head of Benefits (now working in a new role) contacted Mr B to check progress on the DFG. He explained that he had been away from the service area for a few months but “the last [he] knew was that the grants for work... were sorted awaiting your approval...”.
  14. Mr B replied that he had heard nothing since his response in September 2014, so the Council resent the plans and specification. It also sent Mr B a letter about Empty Homes Loans and a change of circumstances form, which Mr B returned. The letter on Empty Homes assistance highlighted that:
    • the funds were discretionary;
    • funds were up to maximum of £30,000 and a land charge would be made against the property;
    • there were limited funds available, so once all available funds had been committed, no further funds could be offered;
    • there had to be enough equity in the property;
    • the Council would undertake a credit check; and
    • there would be a non-refundable fee of £500.
  15. In April, Mr B asked another Housing Standards and Improvement Officer why the Council had not presented the cheque for the Empty Homes Loan application. In June, Mr B asked Ms B’s social worker why the Council had not considered a DHP for Ms B’s “bedroom tax”, and about the delay processing her Empty Homes Loan. His enquiry was acknowledged but no response given. Mr B also asked about a death in service payment in respect of their late mother.
  16. In October, Mr B made a formal complaint about the lack of response on these matters. He explained that Ms B was experiencing financial hardship and agreed to make Council Tax payments on Ms B’s account for the next two months.
  17. In December, the Council completed a mental capacity assessment of Ms B. It determined that she had capacity to make her own decisions and was aware of the scale of her debts. At the time, these were around £20,000 of overpaid Housing Benefit and £8,000 in Council Tax.
  18. In February 2016, after Mr B had contacted the Ombudsman, the Council wrote to him rejecting both the Empty Homes Loan and DFG applications. It apologised for the time taken to respond to the applications.
  19. For the Empty Homes Loan application, the Council explained that its “general principle”' is not to provide discretionary loans for properties where an applicant is also in significant debt to it. In this case, the Council was seeking significant sums of unpaid Council Tax and overpaid Housing Benefit from Ms B for the same property. The Council also considered whether there were extenuating circumstances. However, as Ms B was in an assured short-hold tenancy that met her needs and was not at risk of homelessness, it did not consider that her wish to return to her home was enough to override the “general principle”.
  20. As to the DFG, the Council explained that it had to consider whether the works were appropriate, reasonable, practicable and necessary. This involved considering whether the dwelling would be safe for Ms B to occupy. At present, Ms B’s home is not in a condition where the DFG funded works alone would make the dwelling safe for occupation; it would still have category 1 and or 2 hazards under the Housing Health and Safety Rating System (HHSRS). As there was no indication that Ms B had the resources to independently complete these necessary works, the Council did not consider it reasonable or practicable to provide a DFG for the adaptation works.
  21. The Council issued a refusal notice. It offered Ms B her appeal rights and advised her that she explain how she would complete the necessary works to make the property habitable. Alternatively, she could take steps to make the property fit for habitation and then reapply for a DFG.
  22. Mr B complained to the Council. The Council agreed to extend the timetable for an appeal against the refusal of the DFG, but explained that the discretionary funds would likely be fully committed by the end of May 2016.
  23. The Council did not uphold Mr B’s complaints that it had misled his sister about moving to her present accommodation or returning home. It also did not uphold his complaint about the suitability of her present accommodation or its proposed recovery of debts that Ms B owed the Council.

My assessment

Suitability of present accommodation

  1. Mr B says his sister’s current home is unsafe. He says the front entrance has a ramp, but not the rear entrance, so there are potential fire safety issues if his sister needs to exit the property at the rear.
  2. The Council says that Ms B lives in a property owned by a major social landlord. The landlord has confirmed that the property complied with fire and building regulations at the time of construction.
  3. The Council does not consider that only having a single ramped access is unsafe in terms of fire as Mr B suggests. It has assessed the flat for fire safety under the Housing Health and Safety Rating System (HHSRS), introduced under the Housing Act 2004. This system employs a risk assessment approach to enable risks from hazards to health and safety in dwellings to be minimised.
  4. The system has two categories of risk, the highest risk being Category 1 hazards where the Council has a statutory duty to ensure they are remedied. In the Council's opinion, Ms B’s home does not have a Category 1 hazard.
  5. In view of Mr B’s concerns an Occupational Therapist Assessment was undertaken which suggested that a number of works would be suitable to help Ms B: renewal of the wet room floor; powered entry to the front door of Ms B’s flat and the communal front and rear doors; and an improved ramp at the front and new ramp at the rear. These would be subject to the landlord’s approval.
  6. The Council agreed to fund the following works:
    • new push button automated door releases for the main communal doors and related alterations to the existing front ramp to enable these works to be undertaken and
    • a new ramp to the rear (secondary) access.
  7. However, Ms B and her brother have declined the adaptations.
  8. I see no fault here. There is no evidence to suggest that the current arrangements are unsafe, and the Council has agreed to undertake works to address their concerns though these were declined.

Delay processing the DFG and Empty Homes Loan applications

  1. Mr B has complained that the Council delayed unreasonably in processing the applications. His sister has a Council Tax liability for two properties and this delay has resulted in a large Council Tax debt on her home.
  2. After Mr B applied for a DFG in July 2013, the Council responded promptly by inspecting the property and drawing up a specification. The process was then put on hold pending the clarification of ownership, which was out of the Council’s hands. This was resolved in June 2014 and the Council again sought to move matters forward in September 2014.
  3. At this point, the Council emailed Mr B to check whether Mr B had carried out the works it understood he was undertaking to bring the property up to a habitable standard. The Council again raised the possibility of a discretionary Empty Homes loan to fund these works.
  4. Unfortunately, it appears that Mr B did not receive the email message from the Council so matters remained on hold until the Council contacted Mr B again in February 2015. I see no significant delay by the Council until that point.
  5. From then on, it took the Council a year to respond to the applications. I note that Mr B contacted the Council on a couple of occasions in the spring and summer to check where matters stood, but he did not make a formal complaint until October 2015. After that, the Council undertook a mental capacity assessment of Ms B in December 2015 before deciding on the applications.
  6. It appears that the Council could have processed the application more promptly. But Mr B knew that the Council considered that his sister had substantial debts to the Council and that the loan for the essential repairs would be subject to credit checks, so it seems to me that it should have been apparent that there was no certainty that the Council would approve this application would be approved. Mr B also knew that the DFG would not be approved unless the property was in a habitable condition.
  7. Given this, Mr B might have explored other possibilities in the meantime. He might also have made a formal complaint to the Council earlier if he felt that the Council was delaying. So while there was some delay, I am not persuaded that this has caused Mr B and Ms B significant injustice.

Refusal of the Empty Homes Loan application

  1. Mr B has complained about the Council's refusal of the Empty Homes Loan.
  2. I see no fault in the way the Council considered this matter. The Council told Mr B when the matter was first discussed in September 2014 that the funding was discretionary and would be subject to a credit check. It then refused the loan on the basis of the substantial property-related debts that it considers that Ms B has to the Council. It seems to me it was entirely reasonable for the Council to take these debts into account when considering whether to provide a loan on the same property.


  1. Mr B has asked why the Council agreed to pay a lump sum of DHP in 2015 when it had refused to do so in 2013.
  2. The Council has explained that it considers each DHP application on its individual merits at the time of application and based on the availability of funding.
  3. In 2013, it considered a DHP application for Ms B to meet the shortfall due to “bedroom tax”. It undertook an income and expenditure calculation and refused the application as it considered that Ms B had enough disposable income to pay the shortfall herself. A colleague not involved in the original 2013 decision has recently independently reviewed the decision and found that the correct decision was made based on the information provided.
  4. The Council considered a separate enquiry in 2015 and agreed to award a lump sum payment to clear the then rent arrears due to Ms B's landlord. However, before payment was made, the arrears were cleared so there was no debt to pay via a DHP.
  5. In March 2016, the landlord asked whether DHP could be considered for Ms B's home, as part of a “batch DHP request” for a number of its tenants. At that time there was a debt of £50.29 on Ms B’s rent account. The Council agreed to a one-off clearance of this debt up to end of March 2016.
  6. I see no fault here. The award of DHP is discretionary and will depend on the Council’s assessment of the applicant’s circumstances at the time of the application and the availability of funding. The Council has assessed Ms B’s application on each occasion and determined whether to exercise its discretion.

Council Tax

  1. Mr B says the interim Head of Revenues agreed in 2013 that his sister would not have to pay the balance of the Council Tax until she returned to her home. But the Council is no longer proposing to keep to that agreement.
  2. The Council considers that the former Interim Head of Revenues made a “without prejudice offer” in December 2013 about the Council Tax debts and repayment of debts that had accrued to that date. However, this was not a contract and the Council has the legal right to review this offer.
  3. Ms B’s Council Tax debt has now risen to £11,038.01, and the Council considers that she has other significant debts to the Council. Moreover, the return of Ms B to her home is not within the Council's direct control. Given this, the Council no longer considers it appropriate to keep a hold on recovery of these debts.
  4. I see no fault here. It seems to me the offer to put recovery on hold was made on the assumption that matters would be resolved within a reasonable time frame. As that has not been the case, I consider that the Council is reasonably entitled to revise its position to reflect the current situation.

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Final decision

  1. For the reasons set out I have found no fault by the Council apart from some delay processing the DFG and loan. But I do not consider that this merits any remedy beyond the apology already provided.

Parts of the complaint that I did not investigate

The placement of Ms B in her present home in 2011

  1. I have not investigated Mr B’s complaint that the Council placed his sister in a property that was unsuitable and unsafe when she left her care home in 2011. Mr B says he raised these concerns when his sister moved in and he understood that she would not be staying there for long, but I consider that he could reasonably have complained to the Ombudsman before now.

The placement of Ms B in a property that would attract the “bedroom tax”

  1. I have not investigated the circumstances behind Ms B being placed in a property which now attracts the spare room subsidy (“bedroom tax”). This is because this Council Tax change was only introduced in April 2013, some two years after Ms B moved into the property.


  1. I have not investigated the Council’s decision to refuse Ms B’s DFG. Ms B has an appeal right with the Council and the Ombudsman would expect her to use that appeal right if she disagrees with the decision.

Wording on remedy

  1. I have not investigated Mr B’s complaint about the wording in a 2012 Council letter about an “ex gratia” payment of £400 in relation to a previous LGO investigation. The Ombudsman has previously provided clarification on this, and I do not consider that it is a good use of the Ombudsman’s time and resources to pursue this matter further.

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Investigator's decision on behalf of the Ombudsman

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