The Ombudsman's final decision
Summary: Mrs B complains about the way the Council assessed her for a Disabled Facilities Grant (“DFG”). Mrs B says the occupational therapist (“OT”) did not properly assess her needs and their report contained inaccuracies and inconsistencies. Mrs B says the adaptions requested are necessary for her to safely access her bathroom and kitchen. The Ombudsman finds fault in the way the OT assessment took place.
The complaint
The complainant, who I refer to as Mrs B, complains about the Council’s OT assessment. Mrs B says the OT did not properly assess her needs. She says their assessment report was inaccurate and did not reflect what happened during the assessment. Mrs B says the Council has therefore not considered adaptions to her home that she needs to access her bathroom and safely use her kitchen.
The Ombudsman’s role and powers
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) 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) 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 the information Mrs B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments before making a final decision.
What I found
Law and Guidance Disabled Facilities Grants are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to give grant aid 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.
A grant cannot be approved if the works have already started, unless there is a good reason why. A grant cannot be approved if the works are already completed.
Section 23 of the Care Act explains the boundary in law between care and support and general housing. Where housing legislation requires councils to provide housing services, they must provide them under housing legislation. However, this should not prevent housing and social care councils working together. The guidance states: ‘... community equipment, along with telecare, aids and adaptations can support reablement, promote independence contributing to preventing the needs for care and support. A local [social care] authority may wish to draw on the assistance of the housing authority and local housing services.’
A council should decide a grant application as soon as reasonably practicable. This must be within six months of the application. If a council refuses a grant, it must explain why. Once the work is complete, the council must pay the grant in full within 12 months of the application date.
In February 2015, the government withdrew its guidance “Delivering Housing Adaptations for Disabled People: A Good Practice Guide”. It replaced it with “Home adaptations for disabled people: a detailed guide to related legislation, guidance and good practice”, published by the Homes Adaptations Consortium in 2013. The guidance says that in cases where major adaptions are required and it is difficult to provide a cost-effective solution in the existing home, the possibility of moving elsewhere should be considered.
The government also published the ‘Disabled Facilities Grant delivery: Guidance for local authorities in England’ guidance in March 2022. At Appendix B the guidance says: ‘DFGs are designed to give disabled people a degree of independence in the home and should aim to meet current and anticipated future needs. If the disabled person has care needs, the impact of adaptions on the level of this care should be considered including whether tasks will be reduced or eased. Adaption works will not achieve their objective if the disabled person remains dependent upon the care of others and the adaption does not significantly ease the burden of the carer.
Access to toilet, washing, bathing and showering facilities are listed separately to clarify that a disabled person should have access to a toilet wash hand basin and a shower or bath… The provision of facilities for ‘strip washing’ is not an acceptable alternative to an appropriate bathroom. It may be an appropriate in some cases to resort to this as a short term interim solution, and a disabled person may exercise the choice to strip wash rather than use an accessible bath or shower provision, but it is not considered a “necessary and appropriate” solution.’
Background
Mrs B has a range of health issues, including fibromyalgia, arthritis and irritable bowel syndrome among other conditions. She sometimes suffers from dizzy spells and blackouts.
Mrs B says she struggles to use the stairs with or without assistance, and that this fluctuates based on her levels of pain each day. Her home only has one bathroom on the first floor, so she has difficulty accessing this. The bathroom is shared between five people, three of whom have irritable bowel syndrome. Mrs B says she also has difficulty using her kitchen as she has problems gripping objects. She has several small aids, but these are old and no longer as helpful. Mrs B says she has had several accidents in the kitchen as a result, such as dropping hot dishes.
In July 2020 Mrs B applied for a DFG for adaptions to her home. The Council said Mrs B should hear from an OT within three months. It offered Mrs B a commode for the time she was waiting. Mrs B declined the commode due to concerns over privacy. Mrs B says there is nowhere she could use the commode downstairs that would offer any level of privacy from the other members of her household.
In mid-September 2020 Mrs B chased the Council as she had not heard anything further. The Council arranged for an OT to visit in late October 2020.
The OT conducted an initial assessment on this date but not a functionality assessment, which would involve observing Mrs B moving around the home. The OT assessment report says Mrs B was too tired to complete the functionality assessment, so she rearranged for a later date. Mrs B says this is not true. She says the OT telephoned her after having left and said she forgot to complete the functionality assessment and asked if she could come back. At that point Mrs B was struggling with pain and could not do a further assessment.
Mrs B says she provided a plan for alterations to her home to the OT. This included an extension to the existing ground floor layout, to incorporate the installation of a ground floor bathroom, exercise room and changes to the kitchen. Mrs B wanted to know what part of the plans the Council may be able to fund through a DFG.
The case notes of this visit say Mrs B asked about any equipment she could have for the kitchen to support her during tasks. It says the OT advised the Council no longer provides small aids but may have surplus stock such as tap and lid openers, if Mrs B would find this beneficial. Mrs B says the OT simply offered to look at what she might have left in her car.
The OT arranged to return and complete the functionality assessment in December 2020. The OT’s report says she observed Mrs B mobilise independently with supervision from her husband. In the case notes it says Mrs B transferred to the bathroom with minimal support from her husband, the independently walked downstairs under close supervision from her husband.
Mrs B again disputes the accuracy of this. Mrs B says that her husband physically supported her at all times and held her waist as she walked down the stairs. Mrs B says the OT ended the assessment as she could see she was extremely tired and struggling to concentrate.
The OT produced a report. Under presenting problems it said: ‘There is evidence of overcrowding Mrs B experiences varying pain from day to day which impacts on her daily life, she is already under pain management specialist team to maintain her daily life and fatigue, but would benefit from a level access shower within the footprint of the property, adaptation to the front access, access to ground floor toileting and a seating assessment to consider the appropriateness to a specialist chair.’
The report said the following under ‘recommendations’: ‘OT recommended having level access to the front door – Mrs B declined this, advising that she has incorporated this within the extension plans OT recommended a toilet aid to support Mrs B when transferring on/off the toilet the first-floor toilet- Mrs B declined this.
OT recommends rehousing due to the limited space for the family – Mrs B has declined a rehousing supporting letter.
OT advice is to request a DFG level access shower within the foot print of the property along with access – Mrs B declined advising that she intends on having an extension.
OT recommended having a seating assessment to further consider Mrs B’s long term need for a specialist chair due to her varying pain levels and at times assistance from her husband.
OT recommended a commode for the ground floor – Mrs B declined this.’
In March 2021 Mrs B made a formal complaint about how the OT assessment had taken place. The Council did not uphold the complaint. Mrs B escalated her complaint to the second and third stage of the Council’s complaint procedure.
Findings
I have separated my findings into the following points of complaint: Initial delay in conducting an OT assessment The way the assessment took place Request for small aids/minor adaptions Initial delay in conducting an OT assessment I do not find fault in the delay in the assessment taking place. I understand the Council indicated an assessment would normally take place in around three months. It took slightly longer than this. However, there are no set timescales within the Council’s policy. The law says decisions on DFG’s must be made within six months and, in this case, the Council completed the assessment and communicated its decision within that six-month timeframe.
The way the assessment took place The first point to note is that at the OT assessment, Mrs presented to the OT with a plan of works. There was no obligation on the Council to agree a DFG for the works exactly as laid out in that plan, if it did not consider the entire plan was necessary and appropriate to meet Mrs B’s needs, or it did not consider the works were reasonable or practical. It also had no obligation to fund individual sections of the plan in its existing form.
The reason I find fault with the way the assessment took place is that I cannot see evidence the Council properly considered all the relevant information when making its decision. Also, because I cannot see a clear rationale for how it reached decisions about Mrs B’s needs or a clear explanation of what the Council considered her needs were.
The Council’s complaint response suggests that, in effect, it decided elements of the works proposed by Mrs B were not necessary or appropriate. For instance, the complaint response says the OT observed that Mrs B could independently mobilise and get upstairs to the toilet. Therefore, it did not consider a ground floor bathroom was necessary. However, the OT report identifies a presenting need for ground floor toileting. It suggests Mrs B’s condition fluctuates and she will sometimes need support from her husband to access the first-floor toilet. It offers her a commode to meet this need when it does arise. Therefore, on the face of it, there appears to be some inconsistency between the report and the complaint response. Although the OT report is not overly clear.
I note that, as set out at Paragraph 11, government guidance says adaption works will not achieve their objective if the person does not gain an acceptable degree of independence. The report seems to suggest the OT accepted that Mrs B could not always access the first-floor toilet independently. But it does not go into any detail and I cannot see any exploration or explanation within the report of whether a ground floor toilet was necessary for Mrs B to gain independence using the toilet on a consistent basis.
In terms of the commode, I can see no evidence the Council properly considered the impact on Mrs B’s privacy and dignity, or whether this was an appropriate long-term solution. Government guidance is clear all disabled people should have access to a toilet. It does not comment on the appropriateness of commodes specifically. But the guidance is clear strip wash facilities are not a substitute for proper bathroom and it is easy to see how the same logic might apply to a commode.
There are very clear issues around privacy and dignity that arise from using a commode in ground floor communal rooms in a house with five people. The Council says it will always consider these issues and there was some talk of a curtain in the conservatory. But there is no evidence of that in the OT report or outcome letter. And even a curtain in the conservatory would undoubtedly still give rise to privacy issues. There is no evidence the Council properly considered these issues, or the concerns Mrs B raised.
The Council’s report and outcome letter do not explicitly set why it did not consider other elements of the works were not necessary. For instance, the fitness room or any changes to the kitchen layout. Although I note its OT report does not appear to identify needs in those areas.
Mrs B has raised further concerns about the way the assessment too place, such as the OT misrepresented that she had declined the functional assessment due to tiredness. And the OT description of the level of support Mrs B needed during the functional assessment was inaccurate.
I cannot make any findings on the first point. The OT tried to telephone and go back on the day of the assessment, but by that point Mrs B was feeling too unwell to go through with the functional assessment. Ultimately the assessment was completed, and the issue is about how it was completed. I cannot question the accuracy of what the OT said they observed. I was not present at the assessment. The OT is a qualified professional, and it is not my place to question their judgement of the level of support Mrs B needed during the assessment.
However, overall, I cannot see clear explanations in the OT report for the outcomes and recommendations it reached. There is a list of Mrs B’s medical conditions, but I cannot see a clear analysis of what needs arise from these conditions, alongside the OT’s own observations during the functional assessment. And I cannot see any consideration of the impact that using a commode would have in terms of privacy within Mrs B’s family home. It is not clear why the OT found Mrs B needed adaptions so she could access the front door, but was able to manage the stairs within the home. Therefore, on balance, I find fault in how the OT assessment took place.
In normal circumstances I would recommend the Council conduct a further OT assessment, taking into consideration the issues identified in this statement. However, I understand in this case that Mrs B has already started the work to renovate her home. The Council cannot approve a DFG where works have already started unless there is a good reason why. Mrs B has provided reasons for why she started the works. She says this is because the Council did not approve the works based on fault in the way it carried out the assessment. Mrs B says could not wait any longer and therefore had no choice but to start the works.
I understand the reasons Mrs B has given and have found fault in the OT assessment. However, I cannot say that, but for that fault, the Council is likely to have approved the full range of works Mrs B set out in the plan, and has gone ahead with. I cannot instruct the Council to provide a DFG for those works.
In the circumstances, I recommend the Council conduct a fresh OT assessment, that addresses the issues I have raised in this statement. The OT assessment should clearly outline what the Council considers Mrs B’s needs are, and whether each element of Mrs B’s plan for the works is necessary and appropriate to meet those needs. The Council should then consider whether it can provide a DFG for the already ongoing works, based on the reasons that Mrs B has given for going ahead without securing a DFG in the first instance. I also recommend the Council pay Mrs B £150 to recognise the distress caused by the fault in the way the OT assessment took place.
Request for small aids/minor adaptions Councils may provide minor adaptions of up to £1,000. This is often used for things like grab rails, shower seats and other small fittings. Adaptions of this nature are separate from the DFG procedure.
Mrs B says that during the original assessment, she asked the OT about small aids. She says the OT told her the Council no longer provided small aids. The Council’s OT case notes support this.
Mrs B said she only asked for hand drawers in the kitchen as she often could not access everyday essentials. She also said she has had several accidents and burns in the kitchen, from dropping hot things due to difficulty gripping. The OT case notes do not specific what Mrs B asked for and there is nothing about this in the OT report.
The Council’s complaint response says it no longer provides small aids of a nominal value but does provide fittings such as grab rails.
On balance, I find fault. I can find no laws or guidance around specifically what the Council should offer in the way of minor adaptions. However, Mrs B raised concerns about her ability to access items in the kitchen and accidents. I would have expected to see something about this in the OT report, including what issues Mrs B reported, what kinds of items she requested, and whether anything could be provided in line with minor adaptions. I recommend that this is incorporated into the further OT assessment already recommended.
Agreed action
The Council has agreed to, within a month of this decision: Apologise for the fault in the OT assessment Pay Mrs B £150 to recognise the distress caused Arrange for a further OT assessment to take place, taking account of the issues raised in this statement, following which the Council should determine whether there are good reasons to provide a DFG in the context of the ongoing works
Final decision
I find fault in the way the OT assessment took place.
Investigator's decision on behalf of the Ombudsman