Summary: there is no fault by Rochdale Metropolitan Borough Council in relation to the action it took to deal with Mr and Mrs D’s reports of the collapse of a decked area in the garden of their home which provides the only access to the property and the garden for their disabled son

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs D, complain about the way the Council has dealt with issues relating to the collapse of their garden decking in November 2018. This decking was originally funded through a Disabled Facilities Grant in 2008. The decking provides their disabled son, X, with his only access to the rear of their property and also to the garden. In particular they complain the Council:

1. delayed unreasonably for 7 months after part of the decking collapsed before deciding what to do;
2. gave misleading advice about the extent of remedial works it would arrange and implied it would complete such works after asking Mrs D to obtain builders quotes; and
3. unreasonably decided it has no obligation to restore or replace the decking in line with the originally approved scheme and only, at most, has a duty to provide a new, smaller area of decking.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I discussed the complaint with Mr and Mrs D and considered the written information they provided with their complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
5. I have written to Mr and Mrs D and the Council with my draft decision and given them an opportunity to comment.

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What I found

What should have happened

6. Disabled Facilities Grants (DFGs) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. There is also detailed guidance on good practice.
7. Disabled Facilities Grants are for people with a qualifying disability who need adaptations in their home to help them remain in their home. They are mandatory and must be awarded if the applicant meets the qualifying conditions.
8. The Council’s current Disabled Facilities Grants and Associated Assistance policy states that:
• a DFG will provide the most modest, practical and cost-effective adaptation to meet the assessed needs of the disabled person, ensuring that the limited resources are able to meet demand across the Borough;
• where adaptations have been provided by construction, any faults will be rectified by the original contractor at no cost to the applicant within the defects liability period, which is usually the first 12 months following completion of the works, unless otherwise stated. All adaptations, with some specified exceptions above are the responsibility of the applicant (or in some cases, property owner/landlord), therefore, any ongoing maintenance, or repair is also the responsibility of the owner/landlord;
• DFGs cannot be used to repair a previously provided adaptation, unless it no longer meets the needs of the service user. In some cases, a discretionary form of assistance, called a discretionary repair grant may be agreed for small scale repairs to previous adaptations, if certain criteria are met;
• the Council will make arrangements for contractors to undertake the works, however, the contract is between the applicant and the contractor and the Council will not be liable for disputes arising between the parties. In the event of any disputes, between the applicant and contractor, the Council will help to resolve these, but if this is not possible, it may be necessary for the applicant to seek legal advice to remedy any dispute;
• it will not award a DFG to create a patio or decked area.

Background

9. Mr and Mrs D’s son, X, is a young adult with disabilities. He uses a wheelchair.
10. The Council confirms that work to Mr and Mrs D’s property was completed under a DFG in 2008. The Council confirms that it identified and appointed the builder who completed the works to Mr and Mrs D’s property following a competitive tendering process. As so much time has now elapsed since then the Council no longer retains any of its paperwork for the application. Whilst it does not have the paperwork the Council confirms its usual process would have been for it to have paid the contractor directly.
11. I understand from Mr and Mrs D that the works included construction of a decking area to the rear of the property which X was able to use to leave and enter the property.
12. The Council confirms that in 2017 it applied anti-slip decking strips to the decking under a further DFG following Mr and Mrs D saying it was slippery and therefore unsafe for X to use.

Events since 2018

13. In November 2018 the Council says that Mr D told the Council that an area of the decking had collapsed as X was passing over the area in his wheelchair. The Council says that it used one of its discretionary disability disrepair grants to employ the original contractor to repair the decking three days after Mr D reported the damage. The Council says the contractor did not tell any Council officers that he had used the wrong materials though it says that he did find a piece of decking “appeared to have failed as the integrity of the wood was not as stable as other pieces”. Mrs D denies the contractor did not tell a Council officer about this and says she was present when the contractor said this in front of a Council officer. It says the contractor replaced the timber beneath the structure and made it safe. Mrs D says that in fact the contractor replaced about a third of the damaged timber.
14. The Council says it did not consider further action was required following the repair made under the disability disrepair grant but Mr D stated that he no longer wanted wooden decking and that it was his view that decking should not be used in the area generally due to the wet climate. The Council has gone on to say that Mr D said he wanted the decking replaced with a composite decking alternative which he had been looking into. The Council says it is not the case that the Council asked him to provide quotes for this or any other alternative but says he told the Council how much it would cost to replace the decking with a composite alternative and said he would send the quotes he had obtained to an officer at ther Council when she expressed surprise that the costs he quoted seemed low. Mrs D denies that the Council did not ask her and Mr D to obtain this quote.

Council’s comments on Mr and Mrs D’s request for replacement for decking

15. The Council says that, following the repairs completed in November 2018, X still has appropriate access to and from his house, so does not meet the criteria for a further DFG. However, the Council says it has agreed to provide long term access which will last for a long time, under a further DFG given Mr and Mrs D’s ongoing pressure to find a long-term solution. To this end, one of its technical officers and an occupational therapist have drawn up a plan for a concrete and flagged area instead of the decking. It says that in line with X’s assessed needs and taking into account legislation and policy, the proposed flagged area will be smaller than the existing decked area but is wider at the point X enters and leaves the property so that he can enter and exit safely and access the garden.
16. The Council says Mr and Mrs D are unhappy with this offer as they do not want an area that is smaller than the original decked area. The Council says it recognises that the original area of decking was relatively large. The Council’s current service manager in the relevant service area suggests the reason is probably because, at the time of the adaptation, X was a child, and so additional space was provided as a level safe play area. Mrs D says this is not the case and that the size provided complied with the relevant guidelines.
17. The Council also says that it was unusual to provide decking as part of an adaptation and that its current disabled facilities grants and policy for this says that decked areas will not be provided. The Council says it has investigated why this may have been the case at the time and says that officers who were involved in the DFG at the time believe that a concrete construction of the size provided would have been significantly more costly and the maximum grant had already been reached, with the Council already facilitating an Equity Release Loan to enable Mr and Mrs D to proceed with the adaptation to fund the costs beyond the grant. So essentially it says that the cost of a concrete construction would have been unaffordable given the costs were already above the £30,000 limit.
18. The Council says that decking needs to be regularly maintained and it would not consider replacing the decking with more decking. It says it does not also know how well any composite decking material would last and so it has decided the most appropriate option would be to provide a substantial masonry/concrete structure.
19. The Council says it has offered to obtain a cost for the construction it has proposed under a further DFG and agreed it could put this amount towards the cost of the larger area requested by Mr and Mrs D. The Council says its policy allows for this discretionally and this would enable Mr and Mrs D to have the larger area they want. The Council says Mr D has refused and stated that the Council will pay for all of this. In addition, the Council says Mrs D has said that they want a family area and that she would like in time to build a conservatory on the structure, so the replacement needs to be larger than that being proposed by the Council. Mrs D denies saying this. The Council says it has never withdrawn the offer of providing a solid rear access for X, as Mr and Mrs D allege. The issue therefore appears to be related to the size.
20. The Council says it accepts that one of the purposes of a DFG is 'facilitating access to and from a garden by a disabled occupant or making access to a garden safe for a disabled occupant'. It says that when Mr D told the Council that Y wanted to access the garden, the proposed plans were amended to provide ramped access into the garden.

Was the Council at fault and did this cause injustice?

21. The Council completed immediate repairs to the damaged decking within three days of Mr D reporting its collapse in November 2018. As I understand it this has meant that X has continued to be able to safely access and leave the property. I consider the speed of this response is entirely acceptable. The Council says it did not originally consider it was responsible for replacing the decking and I would agree with this. The decking had been in place for 10 years by the time part of it collapsed. The Council suspects this may be due to poor maintenance though Mr and Mrs D deny this. Any claim about the quality of workmanship or materials would be a matter for Mr and Mrs D to pursue with the builder even though the Council appointed the builder as my understanding is that the contract was, regardless of this, between Mr and Mrs D and the builder. I do not consider the Council was required to replace the entire decked area so therefore do not consider that the ongoing non-replacement of the decked area amounts to fault by the Council.
22. Based on the information the Council has provided on this I do not consider the Council misled Mr and Mrs D regarding its proposals regarding the area of decking. In any case the Council has since agreed to replace the decking with a concrete structure under a further DFG. The reason this has not progressed is because Mr and Mrs D want a larger structure than the Council is required to provide for X’s access needs. It has adapted its proposal to enable X to access the garden when Mr and Mrs D told the Council its plan has omitted this. If Mr and Mrs D want a larger area they can pay an additional amount for this but there is no requirement for the Council to provide anything that is larger than X needs to exit and enter the property including the garden. There is therefore no fault in relation to parts b) and c) of the complaint as summarised.
23. I recognise that in their original complaint to this office Mr and Mrs D said that they did not ask for a further DFG but were asking the Council to “make good” the work that was carried out under the original DFG as the timber that was used was of unsatisfactory quality. For the reasons I have given, the Council is not responsible for the original workmanship and, if Mr and Mrs D wish to pursue this further, they can consider whether they wish to pursue legal action against the builder.

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Final decision

24. There is no fault by the Council in relation to Mr and Mrs D’s complaint about actions it has taken to deal with the damaged decking in relation to their son’s need to access and leave their home.

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Investigator's decision on behalf of the Ombudsman