Ms C said the work was not completed. The Council paid the contractor without Ms C’s approval and failed to take appropriate safeguarding action. The Council will apologise to Ms C and refer her for an advocate to support her to finish the works.
The complaint
Ms C complained the Council recommended an unsuitable builder and failed to supervise works carried out under a Disabled Facilities Grant (DFG). Ms C said the work was not completed, she could not use the extension in its current state, and this left her at risk of harm.
I investigated Ms C’s complaint from 2017, when HEART took over delivery of DFGs for the Council.
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)
How I considered this complaint
I considered: Ms C’s complaint and the information she provided; documents supplied by the Council; relevant legislation and guidelines; the Council’s policies and procedures; and our focus report, ‘Making a house a home: local authorities and disabled adaptations’.
Ms C and the Council commented on two draft decisions. I considered their comments before making my final decision.
What I found
Legislation and guidance Under the Housing Grants, Construction and Regeneration Act 1996, councils can award Disabled Facilities Grants (DFG) to people whose disability means their home needs adaptation. If the person applying meets the qualifying criteria the council must award the grant.
Councils only approve grants for work they decide is necessary. An occupational therapist usually assesses need.
The maximum grant is £30,000. Grants are means tested. Councils can use their discretion to give more help if they think it is necessary.
In 2002, the government introduced the Regulatory Reform (Housing Assistance) Order. This provided councils with wide discretionary powers to help with adaptations. Such help may be subject to conditions including repayments or contributing towards the cost of the work. Where councils choose to exercise these discretionary powers, they should publish a policy which sets out how they will do so.
Section 37(4) of the Housing Grant, Construction and Regeneration Act 1996 made payments of DFGs conditional on works “being executed to the satisfaction of the authority”. If the contractor does not successfully execute the DFG, the applicant should notify the council so it can withhold payment, if appropriate. (Communities and Local Government, 2016, Disabled Facilities Grant) Best practice guidance issued by the Home Adaptations Consortium says all major work needs to be reviewed by a supervising officer at least once while they are in progress and where work continues beyond a week, more often. In all visits, the disabled person and carer should be involved and given the opportunity to comment on the progress of the work and raise difficulties or queries.
The works must usually be completed within twelve months of the council approving the application. The guidance recommends the total time to complete the works should be no more than 150 working days from the first enquiry for non-urgent cases. Councils can allow further time for work to be completed if it is satisfied work cannot or could not be carried out within the time allowed.
There is an underlying primary duty under The Care Act 2014 to meet the assessed eligible needs of a disabled adult. This duty cannot be delegated to another body external to the Council. The Ombudsman does not consider the primary duty to have been discharged until the disabled adaptations have been completed to a satisfactory standard.
HEART From 2017, Rugby Borough Council delivered its Disabled Facilities Grant (DFG) function through the Home Environment Assessment and Response Team (HEART) shared service. This is a partnership between five Warwickshire Borough Councils and Warwickshire County Council. Nuneaton and Bedworth Borough Council are the hosts for HEART.
HEART provides advice and assistance to deliver disabled adaptations and home improvements, including disabled facilities grants. HEART will explain the grant process and assist with completion of application forms and any required means test.
It will prepare a schedule of works and arrange for quotations from suitable contractors. It will liaise with the contractor and ensure works are carried out in a satisfactory manner and to a good standard on behalf of the grant applicant or disabled person. The contractor and/ or the customers agent will provide any necessary certification of the works and get any necessary Building Notice or Planning Approval.
During and on completion of works, contractors may request interim or final payments. The service will check the work undertaken before approving payment with the customer’s permission. In the case of dispute over value, work quality or otherwise, the HEART service will mediate towards mutual satisfaction and a fair outcome for all.
An approval may be for less than 100% of the cost of the works. HEART should inform the customer of their contribution or shortfall. It should not agree to the start of works until that sum can be covered. If customers have any contribution to pay towards works, for extra works or other purposes, the customer should pay the contractor directly and up front i.e. before Council funds, and in any event for works outside of grant scope.
HEART charges a fee. The fee is normally paid for by the grant.
The Councils will consider discretionary financial assistance if the works and fees cost more than £30,000 and there is enough funding available.
What happened
Background
Ms C’s son, D, has a diagnosis of Aspergers and ADHD. D is an adult and lives with Ms C. D can be verbally and physically aggressive towards Ms C.
In 2016, the Council commissioned a charity to provide advice and support to vulnerable and disabled owner occupiers to improve, repair or adapt their homes. In July, Ms C asked the Council for financial support to adapt her property, so she could have a safe space separate from D. The charity arranged for an architect and an occupational therapist to visit them at home. The occupational therapist recommended D’s needs could be met by converting their garage into a separate bedroom and bathroom. Ms C signed a contract with the charity to support her to convert her garage and secure the funds to do so.
Application In 2017, HEART took over the delivery of Disabled Facilities Grants (DFG).
HEART completed an assessment in September 2018. It decided D’s needs could be met by converting Ms C’s existing ground floor garage into a bedroom and bathroom for him (I will refer to this as option A). Ms C wanted to keep her garage. Instead, she decided to contribute to the work to create an extra living room and kitchen on the ground floor and a bedroom and ensuite bathroom on the first floor (I will refer to this as option B). An architect drew up plans for both options to decide the value of the grant.
HEART received three quotes for the garage conversion, option A, and the lowest was £35,000. HEART approved: a DFG of £30,000; discretionary grant of £5,000; and funding for its fee, the architects fee, cost of an asbestos survey and planning fee.
Ms C committed to meeting the costs of any work above this amount so she could have option B. Quotes for the additional work for option B estimated this to be around £40,000. HEART advised Ms C she would also need to pay for any extra plans and site visits and any additional costs above the grant awarded. Ms C confirmed she had the necessary funds.
In September 2018, Ms C signed a contract with HEART for a DFG for a ground floor extension.
Assistance and advice In July 2018, the architect sent Ms C three quotes from building contractors and the project plan. In August 2018, Ms C confirmed she wanted contractor 1 to undertake the work. HEART checked contractor 1 had the necessary insurance, financial viability, and VAT registration.
Ms C signed a contract with contractor 1 and it started work in November 2018.
HEART told contractor 1 to invoice Ms C her contribution of just over £40,000 first. It said once Ms C had paid her contribution, it could invoice HEART. It told the contractor if it incurred any additional costs or agreed private work above what it had quoted for, it must invoice Ms C directly and this will not be funded by HEART.
In January 2019, HEART met with contractor 1 and raised concerns about its work. It arranged to visit the site with building control the following day for an inspection. Building control told contractor 1 the quality of the internal brickwork was poor, and it needed to redo it.
HEART paid contractor 1’s first interim payment in April 2019.
HEART visited the site in June 2019. It raised health and safety concerns it observed with contractor 1. It visited again in July 2019 with the architect. Ms C raised concerns about the standard of contractor 1’s work and that it was not working to the architects’ drawings.
Ms C asked an independent surveyor to assess the work. The surveyor said they were unable to do this because the plans had not been amended in accordance with Building Control requirements. They advised enforcing alterations so the build was built according to the plans may not be valid and could be overruled by Building Control.
A chartered structural engineer assessed the work in July 2021. They found the work been well executed and was structurally sound. They said although some of the work had changed from the architects original plan it had not affected the structural stability of the build.
HEART spoke with contractor 1 about Ms C’s concerns. Contractor 1 said she kept changing her mind and not making decisions. It said changes to the build were in response to recommendations made by building control. It told HEART it was behind schedule and struggling for cash flow. It asked HEART if it could submit another invoice. HEART said it would be unlikely to pay this based on the work completed. Three weeks later, contractor 1 submitted a second invoice and HEART paid it.
HEART met Ms C. It confirmed contractor 1’s work was structurally sound. It recommended Ms C used a different contractor to finish the work because contractor 1 was going into receivership. Ms C decided to stay with contractor 1.
HEART agreed to finance a further £5,000 for the work, taking the Council’s contribution to £40,000 on the basis a charge would be put on the property. It advised her she would need to downgrade the specification of the build if she did not have extra funds. HEART told Ms C she had to resolve works she had agreed with contractor 1 that were not part of option A privately. It told her she could take legal action against contractor 1 and the architect if she was unhappy with their work.
HEART visited the site in September 2019. Contractor 1 asked if it could submit another invoice. HEART said it could not submit one yet. However, contractor 1 submitted a third invoice and HEART paid it.
HEART met Ms C and contractor 1 on site in November 2019. Contractor 1 and Ms C disagreed about who owed what and changes made to the build. When contractor 1 left, Ms C said she wanted to engage a new contractor.
Contractor 1 stopped working on the build. In December 2019, building control recorded the outstanding work. This included electrical and gas works, completing insulation, interlinking smoke detectors, levelling the kitchen floor and installing under floor heating and extractor fans.
In February 2020, HEART told Ms C how much of the grant was left. It told her it would only pay for work necessary to meet D’s assessed needs and if it was agreed in advance. It told Ms C to seek financial advice to see if she could meet the rest of the costs to finish the work.
HEART met with Ms C in March 2020. She asked it to release some of the grant to cover the cost of building materials. HEART told Ms C she needed to pay for work not covered by option A. The following day, Ms C told HEART she had no money for the works and had taken advanced payments from her pension scheme. Ms C asked HEART to release £9,000 of the grant money for work undertaken. HEART advised this money was not for option A and she had to pay for it herself. Ms C became distressed, expressed suicidal thoughts, and left the meeting. HEART phoned the police and asked them to complete a safe and well check to Ms C because it was concerned about her safety. The police told HEART to contact the Council’s Crisis team, this provides urgent mental health support. HEART called the Council’s carer referral line and a charity helpline that provides emotional support, neither answered. HEART contacted Ms C the following day. She told HEART she was distressed because of the problems with the build. HEART referred Ms C for an advocate.
In September 202, the HEART recalculated the amount of DFG Ms C had left.
Ms C complained in 2021. HEART explained the Council assessed D and decide a garage conversion would meet his needs. It said when Ms C said she wanted a larger extension, it agreed to contribute the maximum DFG if the work met D’s needs. It said she needed to meet any costs above the DFG. It advised it could not take responsibility for private work undertaken by contractor 1. HEART said it would work with her to complete the work to meet her son’s assessed needs and this could be paid for out of the outstanding grant money.
Ms C was not satisfied with HEART’s response and asked for her complaint to be escalated. Nuneaton and Bedworth Borough Council wrote to Ms C and explained the Council’s role was to ensure suitable works were undertaken to meet D’s assessed need and to pay the money from the grant to the contractor. Nuneaton and Bedworth Borough Council reiterated it could only fund the grant element of the works, as assessed to meet D’s needs. It reminded her the approved grant works were to provide a bedroom and a bathroom for D. It advised both rooms were built, and the work was considered ‘fair to good’, but they needed finishing for D to use them.
It sent her a list of the outstanding work and an estimate of the costs to finish the bedroom and bathroom. It told her there was enough grant left to pay for these works. It suggested she sought quotes from contractors for the outstanding works. It asked her to tell it if she was happy to take this course of action.
Council enquiry response Rugby Borough Council was not aware of this complaint until I contacted it as part of my investigation. The Council contacted HEART about the complaint. They have agreed in future HEART will report on customer complaints to the partner authorities. They also agreed second stage complaints will be completed by HEART with the cooperation and oversight of the responsible authority. I welcome these changes.
Analysis HEART began working with Ms C in 2017. At this point her DFG had already been approved. Works must usually be completed within 12 months of approval unless an extension is agreed by the Council. In February 2022 work was still outstanding. This delay was caused by the slow progress of contractor 1 and the ongoing dispute between Ms C and HEART about whom was responsible for the outstanding works.
HEART assessed D as needing a separate bedroom and bathroom. It said this could be achieved by converting Ms C’s garage, option A. Ms C decided she wanted a two-story extension to create an extra living room and kitchen on the ground floor and a bedroom and ensuite bathroom on the first floor, option B. HEART was clear with Ms C that the DFG would only pay for work considered necessary to meet D’s needs, and any other work would need to be funded by her. It agreed to award her the maximum DFG and a further £10,000 discretionary funding.
Ms C ran out of money to complete the build. HEART was not liable for the private costs of the build i.e., the difference between the cost of options A and B. The DFG was for the creation of a separate bedroom and bathroom and safe access to both. The work undertaken to date does not meet’s D’s assessed needs. This would normally be fault by the Council; however, HEART offered to work with Ms C to finish the bedroom and bathroom, but she declined.
Councils can require an applicant to arrange for a contractor to carry out the work. In these instances, the applicant or their agent is responsible for managing contractors and ensuring work is carried out correctly. The quality of the work is a contractual matter between them and the contractor. This was the case for Ms C. Contractor 1 was one of three contractors who quoted for the work. Ms C decided to use contractor 1. HEART checked contractor 1 had the necessary insurance, financial viability, and VAT registration. In July 2019, when Ms C and HEART both had concerns with contractor 1’s work and progress, it suggested she engage a new contractor to complete the work. Ms C decided to continue working with contractor 1. This was her decision to make.
HEART had no legal responsibility for the standard of the work carried out by contractor 1 or the architect. As stated above, the quality of the work was a contractual matter between Ms C and contractor 1. There is evidence Ms C instructed the contractor to make changes and paid it directly without informing HEART. HEART advised Ms C to take legal action against the contractor or the architect if she was unhappy with their work. Each time Ms C raised concerns with HEART about the quality of contractor 1’s work or deviations from the architect’s plans, it took appropriate action. It carried out site visits, met with Ms C, the architect and contractor 1 and arranged for building control to inspect. There was no fault with how the Council investigated Ms C’s concerns.
However, despite Ms C expressing concern about the quality and progress of contractor 1’s work and HEART sharing these concerns, HEART paid contractor 1’s invoices in August and September 2019. HEART’s policy says it will check the work undertaken before approving payments with the customer’s permission. Ms C says she did not approve these payments to contractor 1 and I have not seen any evidence to the contrary. Paying these invoices without Ms C’s approval was fault. However, HEART regularly visited the site and checked the contractor’s progress and therefore, on the balance of probabilities, the work paid for was carried out. This fault caused Ms C frustration. It is noted that there is enough grant money left to finish the work eligible for funding by the DFG.
HEART has offered to continue to work with Ms C to complete the extension to make it habitable for her son and meet his assessed needs. Ms C has not accepted this offer.
In March 2020, HEART was concerned about Ms C’s safety. The police told it to contact the Council’s Crisis team. HEART did not do this. It failed to take appropriate safeguarding action, and this was fault. Given HEART’s concerns, this fault could have had devastating consequences for Ms C and it left her overnight in a distressed state without support.
Agreed action
Although the fault is with HEART, the Rugby Borough Council remains responsible and so it is the Council to which we make recommendations.
Within one month of the final decision, the Council will: Apologise to Ms C for the faults found in this investigation.
If Ms C consents, refer her to an advocacy service to support her to work with the Council and HEART to get the outstanding work eligible under the DFG completed.
Within two months of the final decision, the Council will: Remind staff to check customers approve payments before these are made to contractors and keep a record of their approval, and if they decide to pay the contractor without the consent of the customer, to record their decision making.
Ensure HEART has a safeguarding policy in place that includes details of out-of-hours support services.
Provide HEART staff with safeguarding training, including details of the safeguarding policy.
The Council should provide the Ombudsman with evidence it has completed these actions
Final decision
I have completed my investigation and uphold Ms C’s complaint. Ms C was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman