Decision Date: 13/09/2022
Ms X, due to care and support needs, was unable to access the upstairs of her home without the assistance of carers which meant she had to sleep in her living room and use a commode in her living room which opened onto the street. Carers helped her to strip wash and she was able to access the upstairs bath once a week with the assistance of carers. Ms X stated that she dreamt of having a hot bath and using the toilet ‘like a human being’.
In May 2021 an Occupational Therapist assessed Ms X as requiring a stairlift to be installed in her property and made this recommendation to the council who acknowledged this and the fact that Ms X wished to use a Disabled Facilities Grant to pay for the stairlift. Disabled Facilities Grants (DFG) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996, and impose a mandatory duty to fund within the terms of the Act, if the statutory criteria are judged to be met by the Housing Authority’s staff.
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 council should decide a grant application as soon as reasonably practicable. This must be within six months of the application and if a council refuses a grant, it must explain why. Once the work is complete, the council must pay the grant 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”, which had been published by the Homes Adaptations Consortium in 2013.
This non-statutory guidance stressed the importance of close links between housing and social care councils’ staff to make sure people receive the most suitable help. The guidance says that even where the same council delivers these services, it is important to have joint processes and agreements to give an effective service. The guidance also says: ‘Local priority systems should not be used to manage demand and create waiting times beyond the statutory timescales.’
The council’s ‘DFG Minor works waiting list’ appeared to be an attempt to manage a backlog and circumvent the requirement to assess applications within the six-month time limit. Priority on the waiting list is determined by the date the referral is received and the OT points, scored out of a maximum of 48 points. Slough said it automatically added two points each month to applicants’ cases on the waiting list to ensure the waiting list is managed ‘fairly’.
Ms X contacted the council a number of times to follow up on her application and in October 2021 made a formal complaint about the delay to her application. The council responded in November 2021 by telling her she was position 24 on the waiting list and would be contacted when she reached the top of the waiting list. At this point Ms X made a complaint to the ombudsman.
The DFG was approved on the 26th May 2022 and the work was due to be carried out on the 12th July 2022.
What was found
The Council acknowledged Ms X wanted to apply for a DFG in May 2021, but would not accept an application until April 2022, almost a year later.
The ombudsman found that it was fault for the council for taking almost a year to accept a request as an application and that the delay was unacceptable. The ombudsman found the points-based waiting list system was in conflict with the DFG guidance.
The Ombudsman recognised that had the DFG application been processed sooner Ms X would have had an improved quality of life with regard to her dignity and independence almost a year earlier.
The ombudsman applied its tariff for remedies for situations where someone has suffered injustice due to missing out on something that should have happened sooner and made a recommendation that Ms X be paid £3,300 to recognise the distress caused by the delay accepting the application, and £250 to recognise the time and effort Ms X had put into trying to resolve the situation.
The ombudsman has recommended the council ends the points-based waiting list immediately and completes a review of its DFG policy.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The main points to be aware of from this report are:-
Statutory timeframes in relation to DFGs must be followed – a decision on an application must be made within 6 months and payment of the grant made within 12 months of the completion of the work.
This is an example of how action or a decision that is contrary to the legal framework must inevitably be found to be fault, even though the CLAE is not a court and the investigators are not judges. There are some legal principles that are so clear that no council could argue that there was any room for doubt or ambiguity in what the law requires of them. The guidance here is a red herring: the guidance is merely describing the duties in the legislation, signified by words such as ‘shall’ and ‘must’.
The use of a priority system to manage demand and create waiting lists is in conflict with the guidance and councils should not use them.
The council was exhorted to ensure any future policies are approved by Cabinet, having been through legal and financial officer clearance.
Excitingly, from our perspective, since we’re interested in governance, the council has, already, as part of their learning from this case, put in place that all complaints to the ombudsman will have the oversight of the council’s Monitoring Officer and enhanced complaints data will be reported to the corporate leadership team and members.
This has been required under s31(2) of the Local Government Act 1974, but it is a freestanding obligation in every case of an upholding of a complaint by the Ombudsman.
- This section applies where a Local Commissioner reports that there has been—
- (a) maladministration in connection with the exercise of the authority’s administrative functions,
- (b) a failure in a service which it was the function of an authority to provide, or
- (c) a failure to provide such a service.
(2) The report shall be laid before the authority concerned and it shall be the duty of that authority to consider the report and, within the period of three months beginning with the date on which they received the report, or such longer period as the Local Commissioner may agree in writing, to notify the Local Commissioner of the action which the authority have taken or propose to take.
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The full Local Government Ombudsman report on the actions of Slough Borough Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/disabled-facilities-grants/21-017-018