Summary: The Council took too long to decide on Ms X’s application for disabled adaptations to her Council tenancy. The Council failed to include Ms X in its consideration of the possible options, wrongly refused some works because it decided others were infeasible, and included irrelevant factors in its decision making. The Council has agreed to apologise, start the works to provide a step-lift, discuss other adaptations options with Ms X, make a new decision, and make a payment to Ms X. It should also act to improve its services.

The complaint

1. Ms X complained about the Council’s handling of her request for disabled adaptations to her property. She says the Council:
1. took too long to make its decision;
2. failed to consider all the possible options;
3. wrongly refused to adapt the property; and
4. failed to provide any support or alternatives.
2. As a result, Ms X remains living in a property which does not meet her needs and has experienced avoidable 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 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)
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 considered the complaint and the information Ms X provided.
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. Ms X and the organisation 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 adaptations

9. Disabled facilities grants (DFG) are provided under the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to give grants to disabled people for certain adaptations. These include enabling the disabled person to access their home and essential facilities within the home, like bathrooms, bedrooms, and kitchens.
10. Before approving a grant, a council must be satisfied the work is necessary, appropriate for the disabled person’s needs, and is reasonable and practicable.
11. 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.
12. 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. This Council does not apply the means test to its own tenants.
13. 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))
14. The court has said that where an application is for multiple adaptations, the Council must consider the tests in s23 and s24 of the Housing Grants, Construction and Regeneration Act 1996 in relation to each adaptation. (R (on the application of Gulrez (by his mother and litigation friend)) v Redbridge London Borough Council [2022] EWHC 2908 (Admin))
15. The process of applying for a DFG usually requires an assessment by an Occupational Therapist or other qualified assessor to identify the person’s needs.
16. Government guidance sets out expected timescales for progressing an application and completing the works.
17. The guidance gives the following timescales:
• Urgent and simple works – 55 working days
• Non-urgent and simple works – 130 working days
• Urgent and complex works – 130 days
• Non-urgent and complex works – 180 working days

(Disabled facilities Grant (DFG) Delivery: Guidance for local authorities in England 2022)

What happened

18. Ms X is a tenant of the Council. Her health conditions affect her mobility and she experiences significant pain. In 2017, the Council considered adapting Ms X’s property but decided instead that she should pursue rehousing. Ms X needs to stay in the local area because she relies on support from family and friends who live nearby to support her and one of her children, who also has a disability.
19. In January 2022, Ms X asked for an Occupational Therapist (OT) to assess her for adaptations. An OT visited Ms X at home at the end of the month. The report identified:
• The only bedrooms and bathrooms in the property were upstairs
• Ms X experienced significant difficulty and pain getting up the stairs
• A stairlift was possible, but the needs of Ms X’s disabled child meant this was not appropriate or safe
• Ms X did not want to move out of the area and since 2017 no suitable property had come up
• Ms X had difficulty accessing the front of the property because it had steps up to the front door and a step up to the pavement. A step-lift would address this.
• Ms X was spending a lot of time in her bedroom so that she was near the bathroom rather than trying to get up and down the stairs
• There was a large utility room off the kitchen which could become a wetroom
• There was space at the rear of the property to extend
20. The OT wanted to make sure it would be possible to install a step-lift before moving forward. The Council visited Ms X again in mid-February with a step-lift company, which confirmed it would be possible to install one.
21. In April, the OT presented Ms X’s case to the Major Adaptations Panel (MAP). The panel records show it identified that because Ms X’s property was in a conservation area, planning permission might be required for the step-lift. The outcome of the panel was for the OT to get some advice from the planning department and if the front of the property could be adapted “then OT can pursue internal adaptations in order to meet needs”.
22. The planning department advised the OT that it would likely grant permission for a step-lift if the work was “sympathetic” to the area.
23. The OT got a second quote for a step-lift in May and the company provided plans of the proposed works.
24. In June, the Council sent, and Ms X signed and returned, the completed forms necessary to proceed with the adaptation. The OT sent these to the Council’s adaptations team. The OT asked for a joint visit with the project officer when one was allocated.
25. Ms X asked the OT for an update in December. The OT told Ms X that there were delays of up to a year in allocating a project officer.
26. The Council allocated a project officer in late January 2023. The OT and the project officer conducted a joint visit in early February. The project officer’s report said:
• The available space in the back garden and existing kitchen window means the proposed bedroom and bathroom would be “minimum size”
• The existing utility room would remain as-is and the boiler moved to create a door
• Off the utility room would be a bedroom with space for a single bed
• Through the bedroom would be a level access bathroom
• Access to the rear of the property was via a shared drive and alleyway which might pose problems for delivery of materials and parking for tradespeople.
27. Ms X asked the OT for an update in early April. The OT followed up with the project officer, who said they thought adaptations were feasible and would finalise the plans.
28. In May, the adaptations team decided Ms X’s case needed to go back to the MAP for discussion. The team explained to the OT that this was because of the likely high cost of the works and possible issues with access and materials storage while the works were ongoing.
29. The MAP met in mid-May to consider the proposed scheme of a step-lift at the front of the property and an extension to create a ground floor bedroom and bathroom. It decided the works were not reasonable or practicable. The notes of the discussion say:
• The proposed rear extension would not create a bedroom and bathroom big enough for Ms X’s needs
• Access at the rear of the property was difficult and this had implications for delivery of building materials, removal of waste, and parking for tradespeople. The panel recorded these issues might make the works more expensive.
• There might be problems with the drainage at the rear of the property
30. The OT’s record of the panel decision says:
• The works were not reasonable and practicable because they were expensive and costs could increase because of the issues with access
• The proposed works might not meet Ms X’s long term needs as the bedroom would not be big enough for a wheelchair and “there is a chance that [Ms X] could need to use a wheelchair indoors in future”
31. The OT spoke to Ms X on the telephone to tell her the outcome of the panel. Ms X asked for the decision in writing as she wanted to complain. Council posted a letter in June.
32. Ms X complained to the Council in October. She said:
• The Council had wrongly refused her application for adaptations
• There was delay between her request for an assessment and the Council’s decision
• It had not considered other options or discussed these with her
• It was wrong to decide that if a bedroom could not be built, a bathroom would not be built
• The Council could have converted the existing kitchen into a bedroom and bathroom for her and made a small extension to the utility room to move the kitchen.
33. The Council responded to the complaint in in late December. It apologised for the delay in its response. It said it had fully considered all the options and “the proposed scheme of works was not feasible, and no other scheme of works would be possible to meet your future needs.”

My findings

34. I set out my findings on the complaint in the order they appear in paragraph one.

Delay

35. Government guidance for non-urgent but complex adaptations says councils should aim to get from assessment to completion of works in 180 days. In a case where no works were agreed, I would expect it to be quicker still. The OT assessed Ms X in January 2022. It took the Council over a year after this to allocate a project officer, and another six months to make its decision. This includes a period from June 2022 to January 2023 when nothing at all was happening on Ms X’s case.
36. The delay was fault. It caused Ms X avoidable distress and uncertainty, which is an injustice.

Options considered

37. The OT’s referral was for the utility room to be converted into a bathroom. However, the plans proposed to the MAP left the utility room and instead proposed a wet room at the end of the extension, after the bedroom. I have seen no evidence to explain the reason for this difference. If the utility room had been converted into a bathroom, the bedroom space would be bigger, albeit still narrow.
38. The Council appears to have limited its consideration of a rear extension to one the width of the existing utility room. It has not considered an extension which spans the rear of the property or explained why it could not fill in the kitchen window.
39. Ms X suggests that the kitchen could be moved into the utility with a small extension and the existing space converted into a bedroom and bathroom. In response to my enquiries, the Council said this would not be feasible because there would not be enough space. There is no evidence it considered this at the time, however.
40. The property has a downstairs living room. This could be converted into a bedroom and bathroom for Ms X and the kitchen extended to create a living area. There is no evidence the Council considered this.
41. There may be good reasons why any of the above alternatives are not feasible or are not appropriate. But the Council failed to discuss any alternatives with Ms X or give her the opportunity to suggest them. The Council limited its consideration to the plans proposed by the project officer or rehousing. This was fault.
42. It leaves Ms X with avoidable frustration and uncertainty about other options, which is an injustice.

Refusal of works

43. DFGs are mandatory grants. This means if the four tests of “reasonable, practicable, necessary and appropriate” are met, a council must approve a grant. A Disabled person of any housing tenure can apply for a DFG. This includes council tenants. If a council has a different scheme or policy for adapting its own housing stock, it should either apply the same tests as the DFG process or else allow its tenants to apply for a DFG if it refuses works which would be mandatory under the DFG process.
44. From the evidence I have seen, including the information on its website, the Council does not have a separate policy for adapting its own housing stock. It does not apply the means-test to its tenants, but otherwise follows the same process. It should, therefore, apply the four tests.
45. In its decision that the proposed works were not reasonable and practicable, the Council included irrelevant factors in its decision making. Futureproofing is an important part of disabled adaptations. However, the Council considered the “chance” that Ms X might one day need to use a wheelchair indoors meant the proposed bedroom was too small. It had no evidence about whether this was likely for Ms X and if so, how soon this might be the case. In the absence of any evidence as to its likelihood, it was fault for the Council to factor this into its decision making.
46. The records of the MAP meeting show that the likely cost of the works was a significant factor in its decision making. This was fault. Cost is not a relevant consideration as to whether DFG works are reasonable and practicable. Nor are issues with parking. This test is limited to the construction and layout of the building.
47. Ms X said more than once that she was willing to pay towards the cost of the works because it was important to her that she be able to stay in her home. There is no evidence the Council considered this. This was fault.
48. Regardless of the internal works and extension, the Council had identified Ms X needed a step-lift at the front of the property. It had confirmed this was feasible and would allow Ms X to access and leave the property safely. The Council should have proceeded with these works in June 2022, once it had the plans and quotes for these works. Instead, the Council wrongly combined all the proposed works into one decision and, since it did not agree to the extension, did not provide the step-lift either. This is not in line with the court decisions set out in paragraphs 13 and 14, above. This was fault.
49. As a result, Ms X has been without an adaptation she needs and has experienced significant and avoidable pain and difficulty getting into and out of her home for over two years. This is a significant injustice to Ms X.
50. Similarly, even if the Council did not consider a bedroom was feasible, it should still have considered providing a downstairs bathroom. The OT report said Ms X was spending all her time in her bedroom to be close to the toilet and as a result was isolating herself. A downstairs bathroom would mean Ms X would only need to navigate the stairs twice a day, rather than every time she needed the toilet. Failure to consider this was fault.
51. On balance, had it considered this, the Council would have decided it was feasible to provide a downstairs toilet in the property. Instead, Ms X has had to either struggle with the stairs or remain isolated in her bedroom in order to access a toilet. This is a significant injustice to Ms X.

Support and alternatives

52. There is no fault with the Council here. The Council continued to provide Ms X’s package of care, which includes visits from carers. It offered to support her with rehousing if she wanted to pursue this.

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Agreed action

53. To remedy the injustice from the faults I have identified, the Council has agreed to:
• Apologise to Ms X in line with our guidance on Making an effective apology
• Confirm with Ms X that she still needs and wants the step-lift and then apply for planning permission to proceed with these works
• Arrange a meeting between Ms X, an OT, and a project officer or surveyor to explore other options for adapting her home, including Ms X’s views in the process
• Following this meeting, make a new decision about what is necessary, appropriate, reasonable and practicable, applying the correct tests
• Pay Ms X £6,000, being £250 a month for the two years she has been without the step-lift and downstairs toilet she needs.
54. The Council should take these actions within four weeks of my final decision.
55. The Council should also take the following action to improve its services:
• Share a copy of this decision with relevant staff to identify learning from this complaint.
• Remind relevant staff of the limited considerations which apply in deciding whether adaptation works are reasonable and practicable to ensure tenants of the Council are not disadvantaged compared to Disabled people in other housing tenures.
• Ensure applications for multiple adaptations to meet different needs are considered individually with regard to the relevant tests of reasonable, practicable, necessary, and appropriate so that the Council does not refuse works which meet these tests because other, unrelated, works, do not.
• Provide training or guidance to relevant staff on decision making for disabled adaptations, including the law, guidance, and case law referenced in this decision.
56. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Final decision

57. I have completed my investigation. There was fault by the Council. The action I have recommended 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