The Ombudsman's final decision
Summary: There was no fault in the way the Council handled Mr X's grant-funded home adaptations. As there were no council-approved contractors available, Mr X agreed to find one himself. The specifications and inspections were in line with good practice guidance and the Council withheld final payment because of a dispute with Mr X’s contractor. The Council’s actions were in line with the Housing Grants, Construction and Regeneration Act 1996.
The complaint
Mr X complained Bedford Borough Council (the Council) acted with fault in the Disabled Facilities Grants (DFG) process. He complained: specifications were not detailed enough officers only carried out one visit the Council failed to appoint an approved contractor the Council failed to confirm it had withheld payment from the contractor.
Mr X said this caused him avoidable distress as he has been living in a house with unfinished building works.
The Ombudsman’s role and powers
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) Mr X complained to us in November 2021. Some parts of the complaint are late because they are about things which happened in 2019 and into 2020. However, I have investigated because lockdown restrictions delayed the building industry and affected councils’ ability to progress DFG works. The issues were a continuing chain of events and I consider Mr X complained to us promptly once he received a final complaint response from the Council. These are good reasons for the time taken to complain to us and for me to investigate.
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these 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)
How I considered this complaint
I considered Mr X’s complaint, the Council’s response and documents set out in this statement. I discussed the complaint with Mr X Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance Councils award Disabled Facilities Grants (DFGs) under the Housing Grants Construction and Regeneration Act 1996 (HGCRA 1996). I have summarised relevant paragraphs below: Grants can be paid in instalments where works are in progress (Section 35(1)(b)) Payment of a grant is dependent on the council being satisfied with the quality of the work (Section 37(4)(a)) The Secretary of State may make regulations requiring councils to maintain an approved list of contractors to complete grant works. But councils can direct works to be completed by contractors not on the list. (Section 38) A council can pay the contractor directly in full or in part (Section 39(1)) If an applicant is not happy with the standard of works, the council can withhold payment at their request. (Section 39(2)) Home Adaptations for Disabled People is good practice guidance which we consider when dealing with complaints about DFGs.
Paragraph 5.2 says payment of a grant is dependent on the council being satisfied with the quality of the work. Procedures should ensure payments don’t take place until councils are satisfied. Councils should make it clear to applicants that any inspections it carries out to discharge these responsibilities do not amount to supervising the works.
Paragraph 9.27 says the purpose of local authority supervision of the works is to ensure they are carried out to an acceptable standard.
Paragraph 9.28 says major work needs one site visit and more than one where work continues for longer than a week.
Paragraph 9.5: In complex cases, preparation of the specification and plans are done by the grants team. The level of detail should be appropriate to the job.
What happened In 2019, the Council approved a DFG for works to rewire the house, replace the central heating and install a wet room. The letter explained: its role was to oversee the grant process and it was not party to any contract for the works. If there was a dispute, the Council would assist in resolving matters.
It was not responsible for repairs or servicing of heating or electrical installations or any loss or damage to the property because of the works It would arrange a final inspection by a technical officer before arranging payment which would generally be to the contractor unless the HIT (Home Improvement Team) manager agreed otherwise.
There were no council-approved contractors available or willing to do the work, so Mr X selected and engaged a contractor himself. Email correspondence between Mr X and a manager in the HIT in March/April 2020 show Mr X confirmed his willingness to find a suitable contractor himself.
The Council provided Mr X with drawings and specifications drawn up by an occupational therapist (OT) and technical officer for the works. Mr X found a contractor who was willing to do the works. The Council is not a party to the contract.
The contractor did some of the work, but not to Mr X’s satisfaction and the work remains incomplete at the time of writing this statement. The relationship between Mr X and the contractor appears strained at best if not broken down.
In August 2021, the contractor sent the Council interim invoices. There followed an exchange of emails between Mr X and the HIT. Mr X confirmed one invoice could be paid but the other should not be because of incomplete works. The HIT offered to liaise with the contractor; Mr X declined. Mr X later emailed the HIT saying the payment could be released. A couple of days later he emailed the HIT again saying could they stop the payment if it had not already been made because of further non-attendance by the contractor. The HIT said this might not be possible as the works had been checked and he had already agreed to payment. (The payment had in fact already gone through) Mr X emailed the HIT at the end of August explaining he was having problems with the quality of work and delay by the contractor. He said he would not allow the contractor to attend his home and asked the Council not to pay further invoices. He also asked the Council to wait to arrange a final inspection visit. Mr X also raised concerns in an email to the Chief Executive that the Council had allegedly told the contractor he could invoice for a part payment of the work done to date and this had resulted in the contractor invoicing for work that had not been done (or not been done satisfactorily.)
The HIT manager responded in September saying: Officers would arrange an inspection and any issues could be placed on a snagging list before the Council paid the final invoice It was standard practice to tell a contractor they could request an interim payment and this was allowed in Section 35 of the HGCRA 1996. The interim payment was released because he had confirmed with the team that the works requested had been completed.
Did he require an inspection?
She was happy to speak to the contractor regarding any issues, but he had refused this.
Mr X responded saying he had several issues with the contractor and would contact the Council when he wanted a final inspection. He went on to say “in the interim time, any council members coming to inspect without my prior consent will be turned away, this is to ensure that my supplier completes the work to my satisfaction and to mutually agreed terms.”
Mr X sent the HIT a further email in September 2021 saying the Council should not pay any further invoices due to outstanding work and he did not need any help with managing the contractor other than ensuring the invoices were not paid.
In November 2021, the Council issued a final response to Mr X’s complaint. It said: The contract was between him and the contractor; the Council was not a party The HIT did not have any available contractors to complete the works. It tried to find one. To avoid delay, the HIT told him to identify a contractor of his own choice Since his grant, the HIT introduced a formal tender framework with contractors. The applicant was still free to choose their own contractor An officer offered to communicate with his contractor to try and resolve issues and he had declined on each occasion. The contractor told the officer he was not able to get into the property to finish the work. The contractor said they were willing to complete the work and was aware it was outstanding Electrical goods were not part of the grant. They should not have prevented access An officer advised him if he wanted to change contractors, then he needed to let the HIT and Building Control inspect the work completed. He was also advised not to engage another contractor until this happened. He had not given access for the inspection. He needed to provide two quotes from proposed contractors He could not award works to a different contractor until all costings from the previous contractor had been established by the Council. Alternatively, the Council was willing to arrange for one of its contractors to complete the works The 12-month completion period was extended due to lockdown. His grant should have been completed in October 2021. The contractor has confirmed it is willing to compete the work and he had said in an email to the contractor that he agreed. Officers from the HIT were willing to support him but he had declined.
He needed to provide access to review and inspect the works before engaging a new contractor. After the inspection, the Council would give him a schedule of works to give to two proposed contractors and then the Council would give formal approval for the new contractor.
The Council was willing to pay for an independent surveyor to visit and draw up a schedule of works and to check the completed works.
Unhappy with the Council’s response, Mr X complained to us in November 2021.
The HIT arranged for an independent survey to take place in February, but this was cancelled and when contacted in March, the surveyor said he was not available until after Easter. At the time of writing, a further survey has not been rearranged because of staff sickness. The Council has confirmed it is willing to organise another date.
Findings
The specifications are not detailed enough The specifications are in line with Paragraph 9.5 of Home Adaptations for Disabled People and there is no fault. This guidance is not prescriptive about what exactly needs to be in drawings and specifications, only that the detail is proportionate. I have no grounds to criticise the documents in this case although I acknowledge Mr X considers they should have had more detail.
I have also taken into account any outstanding issues with regard to the works which have been completed not being in line with specifications can be resolved through the independent survey and final inspection process.
The Council did not carry out enough inspections My X has confirmed officers have done one site visit. Emails indicate further visits have been offered, including attending when the contractor is present, but Mr X has declined. The Council has acted in line with paragraph 9.28 of Home Adaptations for Disabled People and there is no fault.
The way forward is for the parties to agree a further date for an independent survey and the Council is willing to do this, but it needs Mr X to confirm his willingness and availability.
The Council did not select an approved contractor Section 38 of the HCGRA 1996 makes provision for councils to maintain a list of contractors, but it does not require councils and/or applicants to always use contractors on the list. My view is there was no fault because Mr X clearly confirmed he was happy to select his own contractor after officers were unable to identify a suitable contractor.
The Council failed to confirm it withheld payment.
Mr X confirmed by email the Council could release payment for works already completed and so it did. This was in line with Sections 35(1)(b) and 39(1) of the HGCRA 1996 so there is no fault. It is unfortunate Mr X later changed his mind as the Council had already acted on his advice and sent the payment, but at the time the Council made the payment, it had his consent.
The Council has confirmed it has not paid the contactor’s final invoice. It is waiting for Mr X to agree a final inspection/survey. There is no fault because the Council is acting in line with Section 39(2) of HGCRA 1996.
Final decision
There is no fault in the way the Council handled Mr X's grant-funded home adaptations. Mr X agreed to find a contractor, the specifications and inspections were in line with good practice guidance and the Council withheld final payment because of a dispute with Mr X’s contractor. This was all in line with the Housing Grants, Construction and Regeneration Act 1996.
I have completed the investigation.
Investigator's decision on behalf of the Ombudsman