Summary: Mr D complains on behalf of his disabled son about the Council’s decision to refuse to fund previously agreed home adaptations. We found fault by the Council which raised Mr D’s expectations and caused him time and trouble. The Council has agreed to make a payment to remedy that injustice. It will also complete the process for considering Mr D’s application for a discretionary disabled facilities grant.

The complaint

1. Mr D complains on behalf of his disabled son, Mr Y, about the Council’s decision to refuse to fund previously agreed adaptations to his home to meet his care and support needs.
2. As a result, the family’s expectations were raised and they have been caused significant inconvenience, time and trouble and distress.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I spoke to Mr D about his complaint and considered the information he sent and the Council’s response to my enquiries.
7. Mr D and 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

8. Disabled Facilities Grants (DFG) are provided to help towards the cost of adaptations to the home of a disabled person. A council can only approve a grant if it considers the works are necessary and appropriate to meet a person’s needs and that it is reasonable and practicable to carry out the works, having regard to the age and condition of the property. (Section 23(3) Housing Grants, Construction and Regeneration Act 1996)
9. Before approving a grant, the Council must assess the disabled person’s needs and recommend how these needs may be met by home adaptations. This assessment is usually done by an occupational therapist (OT).
10. The Council has OTs in its home adaptations team who carry out an initial assessment and make recommendations to the Council’s housing services, who act as the housing authority to determine the feasibility, practicality and reasonableness of a DFG.

Discretionary grants

11. The maximum amount of mandatory DFG is £30,000. If an adaptation is necessary to meet a disabled person’s assessed needs and the cost of the works will exceed this, the remainder may be met using discretionary powers under the Regulatory Reform (Housing Assistance) Order 2002.
12. Where councils choose to exercise these discretionary powers, they must publish a policy which sets out how they will so do. The Council’s Comprehensive Housing Renewal Policy sets out its approach to paying discretionary disabled facilities grants.
13. The Council’s policy says discretionary assistance should only be available where the cost of the recommended works exceeds the maximum mandatory DFG and where the grant applicant/property owner is assessed as being unable to fund the cost of the works or the additional costs themselves. The works will be funded in the following priority order:
1. The household’s own resources and savings.
2. Commercial loans based on the individual’s ability to pay from income.
3. Through equity release.
4. Through last resort grant assistance.
14. The Council’s Home Adaptations OT will assess and make recommendations for adaptations to Housing Services.
15. The disabled person/property owner must then apply for the discretionary DFG in writing, enclosing particulars of the works and an estimate of the cost. Applications will be approved following individual case review by a Review Panel.
16. The Council must be satisfied that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling.
17. If the Council approves the application, the works should be carried out within 12 months from the approval date or such further period as agreed by the local authority. Payment is conditional on the works being executed to the satisfaction of the local authority.
18. If the Council refuses the discretionary grant, it must explain why. In cases where major adaptations are required and it is difficult to provide a cost-effective solution, councils may consider the possibility of supporting a person to move to a more suitable home.
19. We expect councils to consider whether interim equipment or temporary works should be provided when it will take them a long time to secure a permanent solution.

Mental capacity

20. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A council must assess someone’s ability to make a decision when that person’s capacity is in doubt.
21. The Mental Capacity Act 2005 (and its Code of Practice) describes when to assess a person’s capacity to make a decision, how to do this, and how to make a best interest decision on behalf of somebody who cannot do so. The decision-maker must consider whether the decision is the least restrictive choice available that can achieve the same outcome.
22. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Care and support needs

23. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
24. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

What happened

25. This chronology is not intended to provide a detailed account of everything which happened, but to provide a general overview of the key issues and events.
26. Mr D’s son, Mr Y, has severe learning difficulties, autism and epilepsy. He has been assessed as not having capacity to make decisions about his care.
27. Mr Y is non-verbal and can have challenging behaviour. He lives at home with his parents and younger siblings. He receives direct payments to fund care and support from personal assistants.

Discussions about need for loft conversion

28. Mr Y moved to adult care services in 2020. A review of his care and support needs said he would lash out to express his emotions and was territorial over his space within the living room, sometimes hitting his siblings if they entered his space. Mr D told the Council that Mr Y would not use the downstairs toilet and shower room.
29. Mr D asked the Council about adapting the home to provide Mr Y with his own space. The OT visited in September 2020 to discuss this. Mr D proposed a loft conversion to provide a bedroom, sensory space and a separate bathroom for Mr Y. The OT made a referral to the Council’s Home Adaptations Team for an OT assessment. They also requested an assessment by the NHS sensory OT service, to consider strategies and equipment to support Mr Y and his family within the home.
30. The OT had some concerns that if Mr Y was in his own space on the top floor, his seizures may not be identified in a timely manner. Also, that there was a risk of trips or falls if he was going into the loft space whilst presenting with challenging behaviours. The OT also noted that the family home was large, with a downstairs lounge and shower room which would be a more suitable and safer environment for Mr Y's needs.
31. The Council says the case note also says “Mr Y would require the same level of care and intervention from the family both with or without a loft conversion [so unclear why this is the least restrictive way to meet his needs].”
32. In January 2021, the Home Adaptations OT advised that a DFG would not cover a loft conversion, as there were other rooms that could be used, a loft conversion may not be the most suitable space and there was work to be done for Mr Y's behaviour and sensory issues. The OT asked the Council to decide on a DFG, but as the assessment by an OT from the Home Adaptation Service had not been completed, a DFG application was not made or considered.
33. The NHS sensory OT assessment was completed at the end of January 2021. It recommended a separate wet room and a safe space in the lounge. In relation to the loft conversion the NHS OT report stated that:

“a DFG would not cover the cost of adaptation for a loft conversion. This is due to the home already having an additional lounge downstairs which could allow conversion to a bedroom. The downstairs toilet/shower could also potentially be converted to the wet room. ... Dad did not feel that the conversion of downstairs lounge/bathroom would meet the needs of Mr Y nor his family. If the DFG could be applied for and agreed to be used for this downstairs conversion. This could significantly impact on the rest of the family with reduced space for a large family and a lifelong home for Mr Y, which encourages his independence.”

34. The Home Adaptations OT then called Mr D to progress their assessment. There is evidence the OT made a number of attempts over the next few months to complete the assessment, but Mr D either did not respond or was unable to arrange a convenient time. When no response was received by 5 July 2021 the Home Adaptations OT closed the case.

Payment to Mr D to have plans drawn up

35. The evidence I have seen says that on 9 March 2021 a one-off Direct Payment was authorised by Community Care Administration to enable Mr D “to explore the option of whether it was feasible and proportionate to adapt the lift space for Mr Y as a sensory safe space.”
36. On 17 March 2021 a payment of £2,741 was paid as a direct payment for “building plans”. In response to my enquiries, the Council said this was to secure quotes to enable draft plans to be drawn up to provide the OT and the technical assessor from Housing to understand the proposal from Mr D and fully explore this with him. Mr D says the Council told him the payment was so he could get plans drawn up for a loft conversion. The Council no longer has any case records or emails about this request. There is no evidence there had been any determination that the adaptations were necessary and appropriate to meet Mr Y’s needs.
37. Mr D applied for planning permission for a loft conversion on 1 April 2021, which was later approved.
38. After spending several months obtaining the building quotes, Mr D sent four quotes to the Council on 9 August 2021.

Decision whether to fund the loft conversion

39. I have seen an internal email from 9 September 2021 asking for advice about progressing the building works. The email says “A request was made and approved for a one-off budget of £65,000 for Mr Y to have a loft conversion (assessed as outside of DFG)”. The Council has no case records or evidence about how this decision to pay £65,000 was made. In response to my enquiries, the Council said funds could come from the Better Care Fund, under the Government’s Building the Right Support policy.
40. The email says the adaptations would be a cheaper option than residential care, but I have seen no care and support plan that Mr Y required residential care.
41. There was some further internal correspondence advising on procurement processes and the Construction (Design and Management) Regulations 2007. It was also noted that Mr Y and his family would need to move out of the property during the works, adding to the costs.
42. Mr D says the manager he had been dealing with emailed him in February 2022 implying that the works had been approved and the quotes accepted. The next step was to approve the direct payments to fund the scheme. The Council has no case records or evidence of this email. The manager then left the Council.
43. In March 2022 the Council met with Mr D. There is no note of the meeting, but the Council wrote to Mr D on 24 April 2022 to say the loft conversion project was no longer viable. This was because it would cost more than a mandatory DFG, with estimated costs between £86,000 and £103,000 and likely to increase. The letter says that for the Council to approve a higher amount, “procurement procedure under goods and services needed to be followed” and building regulations considered. I have seen no evidence that the Council’s Review Panel had considered or decided on a discretionary DFG application.

Mr D’s complaint

44. Mr D complained on 27 April 2022 about this refusal and about delay by the Council. The Council responded on 6 June 2022. It apologised for the distress caused. It said:
• It had initially agreed to fund the loft conversion at a cost of £40,000.
• Delays were largely because of procurement issues, such as obtaining quotes. and seeking advice on building regulations, as it was a unique project.
• The final indicative quotes from its building specialists were in excess of £120,000, making the project unfeasible.
45. Mr D came to the Ombudsman in autumn 2022.
46. In February 2023 a new care and support assessment and plan for Mr Y said he should continue to live at home whilst accessing five days a week day-care, with 58 hours of personal care at home, plus respite care through a personal assistant at weekends.

My findings

47. The Ombudsman cannot approve a mandatory or discretionary DFG. My role is to consider whether there was fault in the way the Council made its decision. If there was no fault in the decision making, I cannot question the outcome.
48. I find there was fault by the Council in March 2021 when it paid Mr D to get plans drawn up. This is because the Council had not yet made a decision that the adaptations were necessary and appropriate to meet Mr Y’s needs.
49. When the Council paid Mr D, the Housing Adaptations OT had not yet completed their assessment and Mr D had not yet made an application for a discretionary DFG. Mr D had stopped engaging with the Housing Adaptations OT as he understood that the cost of the loft conversion would exceed the mandatory DFG grant. I have seen no evidence the Council explained to him that, in order to get a discretionary DFG, a DFG application would still have to be made. The Housing Adaptations OT’s assessment was therefore necessary to complete the application for discretionary grant.
50. Instead, the Council asked and paid for Mr D to have plans drawn up and to obtain quotes. This caused him to understand that a different process was being followed and that a DFG application was not needed. Although the Council refers to other policies, my view is that the Council had to consider the request for funding under its Housing Renewal Policy on discretionary DFGs. This requires a DFG assessment and application to be considered by the Council’s Review Panel. The Council should now complete this process.
51. Whilst an estimate of costs is necessary to decide the works are reasonable or practicable, the Council first has to make a decision about the works being necessary and appropriate to meet Mr Y’s needs. Because there was no Housing Adaptations OT assessment completed, the Council had not done so.
52. The Council is entitled to decide the loft conversion is not necessary or appropriate, or even if it is, that it is not reasonable or practicable. But I have seen no evidence the Council has clearly considered this or made these decisions, or that the matter has been considered by its review panel or that there has been an application for a discretionary grant. This is fault.
53. In response to my enquiries the Council says the OT had decided the loft conversion was not the least restrictive option for Mr Y. It is unclear to me why remaining at home in a loft conversion is more restrictive than entering residential care or remaining at home and living downstairs. But nonetheless this is not a decision the OT is entitled to make without it being part of a wider best interest decision considering all options about where Mr Y should live. There has been no best interest decision about whether it is best for Mr Y to live at home or go into residential care, nor has the care and support assessment indicated that he needs residential care.
54. The OT’s role was to determine whether the loft conversion was necessary and appropriate to meet Mr Y’s needs. In considering that, the Council should take into account the impact of Mr Y’s behaviour on his siblings and parents. This is because one of the purposes for which a DFG can be approved is if there is a need to make the home safer for the disabled person and other people living with them. For example, where someone with challenging behaviours is hurting themself, other people they live with or damaging the property. (Appendix B, Paragraph B48, Disabled Facilities Grant (DFG) delivery: Guidance for local authorities in England, March 2022)
55. As I have said, the fault in March 2021 raised Mr D’s expectations that the loft conversion would be funded. It also caused him significant time and trouble in obtaining builders quotes. The failure to explain the discretionary DFG process to Mr D clearly, has led to a delay in the Council determining whether a grant should be paid. This is injustice to Mr D.
56. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might.
57. For raised expectations and time and trouble caused by fault, our guidance says a moderate, symbolic payment of between £100 and £300 may be appropriate. In cases where the distress was severe or prolonged, more may be justified.
58. I note that Mr D applied for planning permission before he had had a decision from the Council that it would fund the works, I therefore do not consider the Council is responsible for that loss.

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Agreed action

59. Within a month of my final decision, the Council has agreed to:
1. Apologise to Mr D and pay him £500 to acknowledge the time and trouble and distress he has been caused since March 2021.
2. Explain the discretionary DFG application process to him and ask if he wishes to continue.
60. If Mr D wishes to continue with an application, the Council should follow the process set out in its Housing Renewal Policy, including:
• Ask the Housing Adaptations OT to carry out an assessment of whether the loft conversion is necessary and appropriate to meet Mr Y’s care and support needs.
• Ask Mr D to submit a written discretionary DFG application, enclosing the estimate of costs already obtained.
• Ask its Housing Service to determine if the build is reasonable and practicable.
• Put the application to the Review Panel to determine. In considering the application, the Council should take into account the possible purposes of a DFG as I have described in paragraph 54. It may also be necessary to take a best interest decision about where Mr Y should live, or whether the loft conversion is necessary.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman