Summary: The Council’s failure to tell its tenants they can apply for a Disabled Facilities Grant if refused an adaptation under its separate policy was fault. The Council has already identified appropriate action to remedy the injustice caused and improve its services. We have therefore completed our investigation.

The complaint

1. Rykneld Homes, acting on behalf of the Council, operates an Adaptations Policy for its tenants which includes factors irrelevant to the determination of an application for a Disabled Facilities Grant. In doing so, and in failing to tell its tenants they can apply for a DFG, the Council puts its disabled tenants at a disadvantage compared to those in other housing tenures.

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The Ombudsman’s role and powers

2. 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. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
4. 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)

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How I considered this complaint

5. I started this investigation when matters came to my attention during an investigation of a different complaint and I considered that members of the public who had not complained might have suffered an injustice.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
8. The Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Disabled Facilities Grants

9. Disabled Facilities Grants are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to give grants to disabled people for certain adaptations. Before approving a grant, a council must be satisfied the work is necessary, meets the disabled person’s needs, and is reasonable and practicable.
10. The maximum grant payable by a council is £30,000. A council can award other discretionary help if it thinks it is necessary. The council grant amount is subject to a means test.
11. Statutory guidance says eligible council tenants can apply for a DFG in the same way as any other applicant. However local housing authorities with a Housing Revenue Account (HRA) should fund home adaptations for council tenants through this account. The same applies to applications from tenants living in homes managed by an Arms-Length Management Organisation (ALMO) but owned by the local authority.
12. The court has said that applications for DFGs from council tenants should be considered on the same basis as those from other residents. It said councils cannot refuse a DFG because the property is unsuitable for the disabled person’s needs. Councils cannot require their tenants to move home instead of providing a DFG if the statutory tests are met. (McKeown, R (On the Application Of) v London Borough of Islington [2020] EWHC 779 (Admin))

The Council’s policy for its tenants

13. The Council’s policy says Rykneld Homes has delegated responsibility to apply the policy.
14. The Council does not require its tenants to contribute to the cost of adaptations.
15. Of relevance to this complaint, the policy says it can meet its duties by providing adaptations or by rehousing people into alternative accommodation.
16. Section 3.2 of the policy sets out the circumstances where Rykneld Homes will not usually adapt a property. This includes matters relevant to approving a DFG, such as the condition and structure of the property and where it is not the permanent full-time home of the disabled person.
17. However it also says it will not usually adapt a property:
• Where the property is under-occupied
• Where the tenant has a current housing application to move home
• Where the property will not meet the long term needs of the disabled person
• If there is not suitable access to the property for the disabled person
• To provide ramps or handrails which would affect the amenity of the area for other residents
• Where a property is being considered for redevelopment
18. The policy says applicants for adaptations will be required to consider moving to a property which is already adapted.

My findings

19. The Council owns its own housing stock. Rykneld Homes manages the properties on behalf of the Council.
20. In response to my enquiries, the Council pointed out some of the apparent contradictions in the current legislation and guidance about adaptations for council tenants:
• although council tenants can apply for a DFG, any works cannot be funded from the DFG budget.
• DFGs usually need consent from the landlord. So Rykneld Homes could refuse permission for tenants who apply for a DFG that doesn’t meet the criteria in its policy.
21. The Ombudsman recognises these tensions. We also recognise that some Council tenants might be better off under a separate policy which does not require a means test or financial contribution to the works.
22. Our view is that disabled council tenants should not be disadvantaged compared to other disabled residents in the area. DFGs are mandatory grants. This means councils must award a grant if an application meets the relevant legal tests.
23. This means that where a council has a separate policy about adapting its own housing stock it should either:
• Apply the same tests as the DFG process; or
• Tell tenants that they can apply for a DFG
24. The Council accepts that it did not tell applicants refused an adaptation under its policy that they could apply for a DFG. This was fault. Following my enquiries, it has changed its process so that it now does so. This is welcome.
25. The Council also accepts that its policy does not currently explain the difference between DFGs and adaptations under its policy. The Council says it will do a full review of its policy in January 2024, considering our findings and the relevant case law. This is welcome.
26. In the last two years, the Council refused 87 adaptation requests. Of those 87, 58 were for reasons listed in paragraph 17, which would not be grounds to refuse a DFG. Those 58 applicants have therefore experienced an injustice. They should have been able to apply for a DFG and were not told they could do so.
27. In response to my enquiries, the Council proposed writing to affected tenants to invite them to apply for a DFG. I consider this to be a suitable remedy for the injustice caused.

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Agreed action

28. The Ombudsman welcomes that the Council has already identified the action it should take to remedy injustice and improve its services. The Council should provide evidence to the Ombudsman within three months of my final decision of its actions to:
• Tell tenants refused a disabled adaptation how to apply for a DFG
• Review its adaptations policy
• Write to the tenants refused an adaptation in the last two years and invite them to apply for a DFG, explaining the means test and other relevant differences to the adaptations policy.

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Final decision

29. I have completed my investigation. There was fault by the Council. The action it has agreed to take is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman