Summary: The Council was at fault for fettering its discretion to consider the circumstances of Mrs X’s case before refusing to consider a Disabled Facilities Grant to adapt her home. It was also at fault for failing to apply its allocations policy fairly and consistently across the Council’s area. To remedy the avoidable distress and uncertainty caused, the Council has agreed to apologise, make new decisions and act to improve its services.

The complaint

1. Mrs X, who has a Disabled child, complained she has been in an unsuitable property for eleven years because the Council refused to adapt her current privately rented home and has only made one, unsuitable, offer of alternative accommodation.
2. As a result, Mrs X’s child, who is now a teenager, cannot bath properly, safely and with dignity.

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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)
5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
6. 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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What I have and have not investigated

7. Mrs X’s complaint covers a period of over a decade. That means most of her complaint is late. I have considered whether I should exercise discretion to investigate earlier matters and decided there is no good reason Mrs X could not have complained to us sooner. My investigation starts in June 2023.

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How I considered this complaint

8. I considered the complaint and the information Mrs X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. I referred to the Ombudsman's Guidance on Remedies, a copy of which can be found on our website.
11. 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

12. 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.
13. 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.
14. For tenants of private landlords, the Council must be satisfied the Disabled person intends to live in the property as their main or only home for five years.
15. The Council’s housing assistance policy says before approving a DFG, it requires a signed undertaking from a landlord that the property will be available for letting for five years.

Housing allocations

16. Every local housing authority must publish an allocations scheme that sets out how it prioritises housing applicants, and its procedures for allocating properties.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
17. The Council operates a choice-based lettings scheme. This means housing applicants can express an interest in available properties. This is called bidding.
18. The Council places applicants who qualify to join the housing register in a priority band from Emergency Band (highest priority) to Bronze Band (lowest priority).
19. So far as is relevant to this complaint, the Council awards Gold Band to applicants whose housing has a significant impact on their medical or welfare needs making it unreasonable for them to remain in their current accommodation.

What happened

20. Mrs X and her family live in a privately rented property. One of Mrs X’s children, who I will call Child Y, is Disabled. The main problem the family face in their property is that the bathroom is too small for Mr and Mrs X to bath Child Y safely. As Child Y has aged, this has become more and more difficult and dangerous.
21. The Council’s social care and housing services have supported the family for a long time. The Council considered adapting the property around 10 years ago, but this did not go ahead. It also considered buying a property on the open market but could not find anything it could afford that met the family’s needs. Mrs X is on the social housing register in Gold Band and can bid for properties. However, properties of the size and type the family need are rare.
22. In June 2023, an Occupational Therapist (OT) contacted the Council’s housing service to highlight concerns about Child Y. The OT said the Council had been trying to rehouse the family for over 10 years and asked if there were any “out of the box” approaches which might resolve matters.
23. In October, an officer in the housing service told the OT that if Mrs X’s landlord gave permissions for adaptations to the property but could not offer the five-year tenancy required by the Council’s policy, the Council could instead place a charge on the property. Based on this, the OTs started developing suggestions around adapting the garage to meet Child Y’s needs.
24. In early February 2024, the OT met with officers from housing. The notes of the meeting say:
• Normally a DFG would be the solution but in the past the landlord did not agree to this
• To continue with a DFG the landlord would need to agree to adaptations and to a five-year tenancy
• The OT would take the case to the complex case meeting
• That Mrs X is on the housing register however the Council’s policy does not allow a DFG if the applicant is bidding for social housing
25. The OT spoke to Mrs X on the phone following this meeting. Mrs X said no one had contacted her landlord again about adaptations.
26. In mid-February, the Council considered Mrs X’s case at its complex case meeting. The notes show that “Somerset West” (the current Somerset Council replaced several smaller district councils) takes the approach that it should advertise all accommodation for applicants to bid. The OT pointed out that other parts of Somerset take a much more tailored approach in cases of significant need like that of Mrs X.
27. The Council decided that it would not take a tailored approach for Mrs X and her family. It said she needed to bid like everyone else.
28. In March, Mrs X told the OT that her landlord was willing to offer a three-year tenancy. She explained that her landlord is an older person and so was concerned they might not live long enough for a five-year tenancy. The OT told Mrs X they would check with housing if this was enough to continue with a DFG.
29. In an internal email to the OT, the housing service said “[f]or the purpose of a DFG we will require the Landlord to give the 5 year term and for the Client to sign up for 5 years.”
30. In July, the OT sent an internal email to ask if the Council could consider a “pod” (a modular construction resulting in a semi-permanent addition to a property). The OT said it would not meet Child Y’s needs long term, but it would address the urgency of the situation and could go with the family if they moved.
31. The Housing service replied to say that if the landlord wouldn’t agree to a five-year tenancy, it couldn’t do it.
32. Mrs X asked the Council if it would consider buying a two-bedroom bungalow and then doing a loft conversion to create bedrooms upstairs for her other children. The Council told her it was no longer able to buy a property. It told Mrs X the complex case meeting’s decision not to take a tailored approach in her case and that she needed to bid.

My findings

33. The Council’s policy of requiring a five-year tenancy to approve a DFG goes beyond what the law says. The law and guidance require the tenant’s intent to live in the property for five years. The Council can develop its own policies. But it must not take a blanket approach which fetters its discretion to consider the circumstances of individual cases.
34. In this case, the Council suggested in October 2023 that it could consider a charge against the property instead of a five-year tenancy, and Mrs X’s landlord offered a three-year tenancy. However, the Council has insisted it cannot consider a DFG, without explaining how it considered the case. This fettering of its discretion was fault.
35. The Council knows the long and complex history of the case and the unlikelihood of Mrs X and her family being able to move to suitable accommodation in even the medium to long term. Meanwhile, Child Y remains without safe and dignified access to a bathroom. This is an injustice to Mrs X and to Child Y.
36. Mrs X is in Gold Band on the housing register. This is the highest priority aside from Emergency Band. It is not fault by the Council that no suitable properties have come up for Mrs X. We recognise the shortage of social rented homes and especially of larger and adapted properties. The Council is taking steps through its Housing Enabling team to increase the number of accessible and adapted homes in its area.
37. The Council’s allocations policy says that although it will advertise most properties for Choice Based Letting, there are exceptions where it will make a direct let of a property. This includes “[h]omes which have substantial and/or specialist adaptions, which may be directly offered to a household with matching needs.”
38. However, the notes of the complex case meeting suggest there is an internal regional disparity in how the Council applies this exception which is not in the allocations scheme. It appears to be arbitrarily decided and not fairly applied across the Council’s area. This is fault. This creates a disadvantage for Disabled households in some parts of the Council’s area compared to others, including Mrs X. This is an injustice.

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Agreed action

39. To remedy the injustice to Mrs X from the faults I have identified, the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an effective apology.
• make a new decision about a DFG, taking into account the circumstances of this case and considering Mrs X’s intent to continue to live there given it has been her home for over ten years.
• review Mrs X’s case again and decide whether to offer her a direct let, considering the long history of the case and applying its allocations policy fairly, without reference to where in its area Mrs X lives.
40. The Council should take this action within four weeks of my final decision.
41. The Council should also take the following action to improve its services:
• Remind relevant staff that where its policies and procedures exceed statutory requirements, it must not take a blanket approach which fetters its discretion to consider the circumstances of individual cases.
• Remind relevant staff, and in particular senior managers, that the Council is now a single unitary authority and must take a consistent approach across the area and apply the Council’s allocations policy fairly.
42. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

43. 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