The Ombudsman's final decision
Summary: The complainant alleged that the Council delayed in carrying out adaptations to her property, and it failed to assess her, and her disabled son, properly when considering what adaptations were necessary to their home. The complainant would like downstairs bathing facilities, but the Council considers it is appropriate for the upstairs bathroom to be converted into a level access shower. My view is that the Council has considered the complainant’s preferred option. But there are some important gaps in the information, which it has, and this is fault causing injustice. The Council has now agreed to make further enquiries into the medical needs of both the complainant and her son and to reconsider the application. We have therefore completed our investigation and are closing the complaint.
The complaint
The complainant, who I refer to as Ms X, complained that the Council had delayed in carrying out adaptations to her property under the Disabled Facilities Grant (DFG) scheme and has failed to properly assess her and her son’s (B’s) needs when deciding on the required adaptations. Ms X says that this means she and B are living in unsuitable conditions and she is finding it extremely hard to care for her disabled son. She also has her own medical needs which Ms X considers the Council has not properly taken into account.
The Council offered a DFG in April 2022 to replace the upstairs bath with a level access shower and height adjustable chair. But Ms X has declined to accept the offer because she considers the recommended adaptations will not meet her and B’s needs, and she does not want the bath to be removed.
The Council has investigated the complaint and is satisfied that all relevant information has been considered.
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) We cannot question the merits of council’s decisions, properly taken, unless there is some fault leading up to the decisions taken.
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)
How I considered this complaint
I made enquiries of the Council and spoke to Ms X on the telephone and considered the written information provided by the complainant and by the Council.
Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
Tenants of council properties (and others) can apply for a DFG to help make their home accessible. The grant must be used to meet the cost of adapting a property to meet specific needs.
The law says that councils must be satisfied that the proposed works are necessary and appropriate. Housing authorities must consult children services or adult services to decide whether the required works are necessary and appropriate. Normally, an Occupational Therapist (OT) will carry out these assessments. Once housing authorities have this assessment, they must decide whether the required works are reasonable and practicable.
Events of this complaint The complainant applied for a DFG in 2019. B is approaching secondary school age. He has autism (ASD), Attention Deficient Hyperactivity Disorder (ADHD) and celiac disease (an immune disorder causing intestinal damage and diarrhoea). He also has mobility problems and painful achilles, and Ms X says that B cannot walk for long. He has a wheelchair. Ms X says that B is being considered for further surgery on his legs to help his mobility and lessen the pain. But it has been recently decided that further surgery would be too traumatic for him.
Ms X says that B has no sense of danger and is doubly incontinent. B attends a special school and is due to move to a special secondary school in September 2022. B has an Education, Health and Care (EHC) plan.
Ms X says that she has severe osteoporosis and is in a lot of pain. She says that her condition is improved by having regular hot baths and she is very reluctant to have the bath removed, and a level shower installed instead. She takes over the counter painkillers when required.
Ms X lives in a three-bedroom property with a garden, rented from a housing association. There is an upstairs bathroom, with a bath and toilet. Ms X says that B cannot manage the stairs independently and she has to always walk behind him in case he falls. Ms X says that constantly going up and down the stairs for B to use the toilet is very difficult, and she would like downstairs facilities, a wet room with a shower and toilet for B.
Ms X says she was assessed as requiring a three-bedroom property because B has extreme sensory difficulties and has a separate sensory room. His bedroom has to be empty besides a bed, otherwise he cannot sleep.
The Council has carried out Occupational Therapist (OT) assessments. The OT has concluded that it is necessary and appropriate to convert the bathroom upstairs, by removing the bath and replacing with a level access shower to ensure safe access to bathing facilities. The OT assessment has concluded that both Ms X and B are independently mobile and are able to manage the stairs without help. The Council say that B’s school report also states that he is independently mobile. So, on that basis, the OT has concluded that downstairs bathing facilities are not necessary for B.
The housing department has considered Ms X’s requests for downstair bathing facilities. The Council says that its technical officers will consider different ways that the property can be adapted to meet the requirements set out in the OT recommendations. But the Council has ruled out downstairs facilities because the OT has confirmed a suitable scheme to meet B’s assessed needs both now and in the future and this is to convert the upstairs bathroom.
The OT has also assessed Ms X in her own right. The Council says that her General Practitioner (GP) has not provided information confirming Ms X’s stated painful condition or her reliance on painkillers.
There is also no space on the ground floor to provide a shower/toilet internally. The Council says that the only way to achieve this would be for there to be a ground floor extension. But the Council is required to be mindful of achieving best value for money and, where there are potentially alternative options, the Council will normally, and correctly, choose the lower cost option.
In April 2022, the Council offered Ms X a DFG to carry out adaptations to the upstairs bathroom. To date, Ms X has declined to accept this offer. And, therefore, the DFG has not been approved.
Ms X’s additional information In response to the Council’s comments, Ms X says that the Council does not have the correct medical information, either about her condition, or about B’s mobility difficulties. She says that the OT did not observe B walking up and down the stairs, and only saw him manage three little steps out into the garden. Ms X also says that the Council has not obtained the information from B’s physiotherapist or from the hospital, where B has had surgery in the past.
In respect of her medical condition, she says that the Council does not have the correct information from her GP about her medical condition and the impact on her mobility.
Areas of dispute between Ms X and the Council- B’s mobility and Ms X’s medical condition This is a significant area of dispute with Ms X saying that B cannot go up and down the internal stairs independently and, because of his celiac disorder, he needs to use the toilet frequently. Ms X says that the OT did not observe B walking up the stairs because he refused to do this for her. All the OT observed was B stepping down small steps into the garden to use the trampoline, which is there to improve his muscle strength. Ms X says that B’s school is on one floor so there are no steps. This is why he can manage his mobility much better when at school and explains why the school say he can access the toilet independently.
Ms X also considers the Council does not have the recent information from the hospital where the proposed surgery on B’s legs was being discussed and which records the level of his mobility issues. And the Council does not have a report from the Paediatric Physiotherapy Department which stated, in November 2021, that B’s toe walking affects his balance significantly, and it also makes walking very tiring for him.
In respect of Ms X’s medical condition, she says that she has not seen her GP during the Covid-19 lockdown period and that the information the GP has provided is not accurate. She says that her osteoarthritis is extremely painful and is a degenerative condition. She has regular bone scans, detailing the thinness of her bones, and this information should be available to the Council.
Findings
The Council has assessed Ms X’s DFG application and has considered her preferred option of having downstair facilities. Ms X does not want to lose the bath upstairs and have it replaced by a level access shower. She also considers the Council does not have all the necessary information about B or her mobility difficulties.
The Council is entitled to make its decision based on the information it has. But, if Ms X is correct, and some key medical information is missing, then potentially this additional information might make a difference to the Council’s decision. It is not clear why the Council does not have the additional information, which Ms X has provided. But, failure to have this information amounts to fault. It is also fault if the OT assessment did not observe B directly walking and up and down the stairs at home, given this is the key reason Ms X is asking for downstairs toilet and shower.
In respect of the time taken, it seems that the initial request for these adaptations was received in April 2021. When Ms X learned that the OT would be recommending removing the bath, this started a series of communications with Ms X objecting to this proposal. Ms X is entitled to do so. But this has added to the delay in making a formal DFG offer and therefore I do not find fault here.
Agreed actions
There is currently a stalemate between the Council and Ms X. My view is that key medical information is missing and may mean that how the Council has assessed the referral for a DFG is flawed.
To remedy this, the Council has agreed to obtain: up to date written medical information from Ms X’s GP (specifically about her mobility issues, medical condition and pain levels); up to date written medical information from B’s physiotherapist up to date recent information from the hospital, where B has received treatment; the OT should observe B walking up and down the stairs at home; and once the Council has the above additional information, it will reconsider the DFG application and issue a fresh offer. It may be the same as before. But, at least, the Council will have reached this on the basis of more detailed information about B and Ms X’s medical/mobility issues.
I recommend that these actions should be completed within the next six weeks from the date of the final statement. The Council has already started to obtain this additional information and is arranging a fresh OT assessment.
Final decision
I have found fault causing injustice. The Council has agreed a way to remedy this. I have therefore completed my investigation and am closing the complaint.
Investigator's decision on behalf of the Ombudsman