Summary: There was no fault in the Council’s decision to require a disabled facilities grant application to be made by a property owner, rather than a tenant. The Council was at fault, because resources issues triggered some delay in the process, but there were also other factors which caused delays which were not in the Council’s control. We are satisfied, however, the delay caused by the Council creates some uncertainty, and the Council has agreed to formally apologise for this.

The complaint

1. I will refer to the complainants as Mrs C and Miss J. Mrs C is Miss J’s mother.
2. Mrs C and Miss J complain about the Council’s handling of a disabled facilities grant (DFG) application. Specifically, they say:

• the Council has decided the application must come from Mrs C as the property owner, rather than from Miss J as a tenant, which means they may be required to repay some of the grant money if the property is sold; and
• there has been significant delay in the process, with the work still yet to commence. The likely cost of the work has increased in that time, and the current facilities available to Miss J – which the new work is intended to repair and improve – are deteriorating, which has negative implications for Miss J’s health.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I reviewed Mrs C’s correspondence with the Council, and a detailed chronology and series of notes provided by the Council.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. The following chronology summarise the key events relevant to this complaint. It is not intended to provide a detailed, comprehensive account of everything which happened.
8. Miss J is a young adult with significant physical care needs. She lives at home with her parents. The Council provided a previous DFG to Miss J to fund the creation of a wet room in the house, as this was necessary to help her wash effectively and comfortably.
9. In February 2022, the Council received a referral from an occupational therapist (OT) for further works to be carried out for Miss J’s benefit. This included the replacement of the flooring in the wet room, due to it having deteriorated, along with several new pieces of equipment. In April and May the Council’s case officer completed a preliminary application and means test, and sought quotes for the proposed works.
10. In October Mrs C contacted the case officer for an update. He replied to explain the OT was still waiting for quotes, which had been delayed due to industry pressures. Mrs C replied to state the Council had already received a quote, and the OT contacted Mrs C to explain the Council needed to obtain two quotes.
11. In December the OT contacted the case officer and Mrs C to say she had identified a second potential supplier. The OT suggested arranging a site visit for a quote in January 2023.
12. In January Mrs C sought to contact the case officer several times. The OT provided a full specification for the recommended works to the Council. In February, the OT emailed the case officer to say the supplier did not have a suitable product for the proposed works. The OT asked if the Council could therefore accept just one quote, and the case officer replied to say he would need to discuss it with his manager.
13. Later in February and in March, the OT and Mrs C both contacted the case officer several times for an update. In late March, the case officer replied to say he was drawing up the formal DFG offer letter and would issue it soon. Mrs C chased the officer again in mid-April, and the officer sent the letter the next day.
14. Shortly after receiving the letter Mrs C wrote to the case officer to ask why the DFG offer was in her name and not Miss J’s. The case officer replied to explain he had put Mrs C on the form as the applicant, as it was she he had been dealing with. He assured Mrs C the means test was based on Miss J’s income and assets. Mrs C responded to insist Miss J be treated as the applicant.
15. Several weeks later the case officer sent an amended version of the letter in Miss J’s name. Miss J then contacted the case officer to ask for Mrs C’s name to be removed from another part of the form, but the case officer replied to explain this part was there to record the property owner, which was Mrs C.
16. Over the following weeks there was a series of correspondence between all relevant parties, with the purpose of confirming various technical details of the work. Then, from June, the Council said it was waiting for Mrs C’s agent to provide plans and cost estimates for the work, before it could continue the application. The agent sent these in November, and then contacted the Council again in early January 2024 to ensure it had received them.
17. On the same date Mrs C emailed the case officer for an update, and then a couple of weeks later called to chase the case officer for a response. The case officer finally responded to Mrs C in early February, to make arrangements for an appointment to complete the full application form (which they agreed for 9 February). The case officer then explained to Mrs C he had checked the DFG process again, and established that it was she, and not Miss J, who needed to be the formal applicant for the grant. This was because Miss J was neither the owner nor tenant of the property.
18. The case officer visited Mrs C on 9 February as agreed, but Mrs C declined to complete the application. A couple of weeks later Mrs C emailed the case officer and asked why he had not accepted Miss J’s tenancy agreement, and still insisted she needed to make an owner application. Mrs C alleged this amounted to disability discrimination. The case officer replied to say he had sought advice from his manager, and explained the legal background to the issue, including that it was for the Government to consider any equality impact of the law.
19. Mrs C replied to state the Council was fettering its discretion and had failed to appreciate its duty to consider the equality impact of its decision. She suggested the Council take legal advice on the matter.
20. The Council sought expert advice from a third party, and consulted with several other local authorities. They agreed it was correct to require Mrs C to make an owner application under the circumstances.
21. Mrs C chased the case officer for an update at the end of March. Having received no response, she then submitted a formal stage 1 complaint on 10 April. She reiterated her view the Council was fettering its discretion and failing to meet its equality duties, and complained there had been drift and delay, and poor communication, in the DFG process to date.
22. The case officer replied the following day. He said he had sought advice and confirmed this was that Mrs C should make an owner application. The case officer’s manager emailed Mrs C on the same day, apologising for the delays in the case, but rejecting her allegation the Council was fettering its discretion.
23. The Council formally replied to Mrs C’s stage 1 complaint on 8 May. It reiterated the case officer and manager’s explanation for why it required an owner application, and that it did not agree it was fettering discretion or failing to discharge its equality duties. However, the Council agreed it had not met its service standards for communicating with Mrs C, but explained it had recruited new staff to fill vacant posts, which it said should address this problem.
24. Mrs C submitted a stage 2 complaint on 17 May, to which the Council responded on 21 June, with both parties repeating the same points. Mrs C then referred her complaint to the Ombudsman on 9 July.
25. In November, before we began our investigation, Mrs C contacted us again to say she now had a new complaint, concerning a dispute with the Council over whether it should provide alternative accommodation for Miss J while the work is carried out. For this reason, she said she had still not agreed to sign the DFG application. In response we explained to Mrs C that this was a new matter, which we could not accept for investigation yet because she had not made a formal complaint to the Council about it.
26. At the end of November the Council confirmed it had now approved the DFG application.

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Legislative background

27. 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.
28. 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. The test does not apply to applications from landlords, or from parents for grants for their disabled children. Regardless of who makes the application, the means test applies to the disabled person (the ‘relevant person’). If the relevant person has a partner, their finances are assessed jointly.
29. In March 2022 the government issued non-statutory guidance “Disabled facilities Grant (DFG) Delivery: Guidance for local authorities in England.
30. The guidance identifies five key stages to delivering home adaptations:

• Stage 0: First contact with the service. Councils should ensure the public has access to information and advice about the DFG process.
• Stage 1: First contact to assessment and identification of the relevant works. An occupational therapist (OT) will assess the person’s needs and potential solutions through home adaptations.
• Stage 2: Identification of the relevant works to submission of the formal grant application. The person completes and submits the application form together with designs and costing for the works (where necessary).
• Stage 3: Grant application to grant decision. The Council will check the application and issue a decision letter. If a council refuses a grant, it must explain why.
• Stage 4: Approval of grant to completion of works. The works are arranged and carried out and the necessary quality checks made.

31. A council should decide a grant application as soon as reasonably practicable. In addition, the timescales for moving through the stages will depend on the urgency and complexity of the works required. 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

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Analysis

32. I will address each point of Miss J and Mrs C’s complaint in turn.
33. First, I must note the law says a complainant should approach us within 12 months of becoming aware of the issue they wish to complain about. This is called the ‘permitted period’. The events relevant to this complaint began in April 2022, but Mrs C did not complain to us until July 2024, meaning anything which happened before July 2023 is late by this rule.
34. However, the law permits us flexibility in the application of the time limit, if we consider the complainant has good reasons for the delay. Mrs C has explained that Miss J underwent significant surgery and had to stay in hospital during the permitted period, and that she also been involved in an appeal to tribunal about the support being provided to Miss J.
35. On balance I consider this provides good reasons to explain why Mrs C did not approach us sooner, and I have therefore disapplied the time limit and considered the full history of Mrs C’s complaint.

Council’s decision Mrs C must make an owner application

36. The Council has decided Mrs C must apply for the DFG as the owner of the property, rather than Miss J applying as a tenant.
37. The significance of this distinction is that, with an owner application for a grant over £5000, the Council will register a land charge against the property, allowing it to seek repayment of up to £10,000 of grant money if the property is sold within 10 years. There is no similar charge for an application from a tenant, although they are required to obtain the owner’s permission for the adaptations.
38. Mrs C complains this is the wrong decision. She says Miss J has a formal tenancy agreement, and although Mrs C and her partner currently live in the property, their intention is to move out at some point and allow Miss J to live there independently with the support of carers. She considers this means Miss J should be making the application in her own right as a tenant.
39. Mrs C also says the Council has failed to take into account Miss J’s disabilities in its decision, as it is possible her condition may deteriorate and she will be unable to remain in the property. She considers this means any repayment she is then required to make will amount to disability discrimination.
40. The Ombudsman’s role is to review how councils have made decisions, in the course of performing their duties. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant evidence, or not properly explained the reason it has made a decision. We call this ‘fault’, and, where we find it, we can consider the consequence of the fault and ask the council to address this.
41. But we do not provide a right of appeal against a council’s decisions, and we cannot make operational or policy decisions on a council’s behalf. If a council has acted without fault, then we cannot criticise it, even if a complainant feels strongly that its decision is wrong. We cannot uphold a complaint simply because someone disagrees with what a council has done.
42. In this case, I am satisfied the Council has given a clear and rational explanation for its decision that an owner application is appropriate here. This is because Miss J currently lives at home with her parents, and is not a tenant in the normal sense of the word. I note the Council has also commented that, although Miss J has a tenancy agreement, this was produced retrospectively.
43. I also share the Council’s view there is no evidence it has failed to take into account its equality duties in making this decision. As the Council has explained, the ‘repayment’ principle is set out in law, and so any consideration of the equality impact was for the Government to make when drafting the legislation. The Council has no discretion in this matter and cannot disapply the law. Its role is simply to assess the objective facts of each case and decide which type of application is appropriate.
44. And, in fact, even if the Council did have the power to disapply the normal rules, I do not see what might reasonably lead it to do so here. While Miss J has disabilities, this is true for the applicant and/or beneficiary of any DFG. It does not represent any exceptional circumstance in her case.
45. In any case, I consider Mrs C’s fears about the repayment are somewhat misplaced anyway. It is not that the charge will become payable if Miss J moves out within 10 years; it will only become payable if Mrs C sells the property within 10 years. It does not directly follow, therefore, that Mrs C will need to repay money if Miss J’s condition deteriorates and she is no longer able to live in the property.
46. And, in addition, although the law requires the Council to place a land charge against the property, it is not required to actually seek repayment. Councils do have discretion in this matter, and they may decide not to do so if they consider it would be disproportionate.
47. I find no fault in this element of Mrs C’s complaint.

Delay in DFG process

48. I have reviewed the chronology provided by the Council, and I note there were several periods when Mrs C and the OT struggled to make contact with the case officer, and when the case officer made little obvious progress on the application – for example, between January and April 2023, and then again between November 2023 and 2024.
49. In response to enquiries we made with the Council, it said:

“[We] acknowledge that there were delays in responding to [Mrs C] on occasion due to officer absence and workloads. The case officer experienced some ill health during the course of the case and is now on long term sick leave. We have put in place measures to address this, namely the appointment of a 0.6FTE [full-time equivalent] post specifically to support DFG applicants and an honorarium to cover the duties of the case officer who is now on long term sick leave.”

50. The fact the case officer was unavailable at times was clearly not through fault of the Council. However, the Council has a duty to provide a prompt and efficient service to DFG applicants, and this means ensuring resilience in the service where necessary. It is positive the Council has recognised its fault in this respect and taken proactive steps to improve the service, but, inevitably, I must find fault for this reason.
51. However, I am not persuaded this provides a full explanation for the delays in this case. The Council’s chronology also documents several lengthy delays in receiving information from third parties, including a difficulty obtaining quotes from suppliers in late 2022, and a further wait of several months in 2023 while the Council waited for plans from Mrs C’s agent. These delays also appear to have set the process back considerably, but cannot reasonably be blamed on the Council.
52. I must also consider Mrs C’s decision not to sign the application form on the appointed date in February 2024. I understand she made this decision because of her disagreement with the Council on the ‘owner or tenant application’ issue, but as I have explained, I see no reason to criticise the Council’s decision-making in this matter. While it was Mrs C’s prerogative not to sign the form, therefore, the delay this caused was not because of any fault by the Council.
53. I am also conscious Mrs C continued to decline to sign the application form more recently (although the Council has now informed us it has finally approved the DFG). I understand this is due to what she considers to be further fault by the Council; however, as this does not form part of my investigation, I am unable to draw any conclusion about it here. All I can say is that the most recent period of delay was due to a decision Mrs C made.
54. Taking these points together, while I am satisfied the Council is at fault, I do not consider I can quantify the element of the delay which is reasonably attributable to the Council. There have been several contributory factors at play here, and I am certainly not persuaded the DFG would now be complete, were it not for the Council’s fault. By extension, I cannot say the facts the work is still yet to start, and that Miss J is still required to use the existing, degraded facilities, are injustices arising from the Council’s fault.
55. Rather, I can only define the injustice to Mrs C and Miss J here as one of uncertainty.
56. In her complaint form, Mrs C said she was seeking compensation from the Council for its alleged faults. Our published guidance on remedies says we will consider recommending a payment as a remedy for uncertainty caused by council fault; however, this will typically be a very modest figure, and does not amount to ‘compensation’ of the type a court might award.
57. Even accepting this, given it is not possible to quantify the delay caused by the Council’s fault, or identify what substantive effect this had on the DFG process, I am not persuaded a financial remedy is appropriate here anyway. I cannot overlook that the delays which were out of the Council’s control are at least as responsible, if not more so, for the fact this DFG application has been ongoing for so long without resolution.
58. But I do consider it would be appropriate for the Council to write a formal letter of apology to Mrs C and Miss J, acknowledging the impact of its fault, and providing reassurance it will process and complete the DFG process without further (council-attributable) delay. I make a recommendation to this effect.
59. On a separate point, I note Mrs C has accused the Council of gatekeeping the DFG process, by refusing to provide the formal application form during the early stages.
60. ‘Gatekeeping’ is a term we use to mean creating artificial barriers, to hinder a person’s access to a service they are entitled they receive; for example, by requiring them first to meet certain criteria, which have no basis in law.
61. But I am unable to see anything which could reasonably be described as gatekeeping here. Although it was some considerable time into the DFG process before the Council provided the formal application form, this actually appears correct – as explained at paragraph 29, completion of the application form is part of the third stage (‘stage 2’) of the process. The reason it took so long to reach this stage was because of the various factors which delayed completion of the first two stages. Although the Council was partly responsible for these delays, there is no evidence to suggest it was being purposely obstructive.

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Agreed action

62. Within one month of the date of my final decision, the Council has agreed to write a formal letter of apology to Mrs C and Miss J, acknowledging the injustice caused by its fault in this case. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman