Decision date: 20th January 2023
In January 2021, Miss B contacted the Council regarding her father, Mr C, who had difficulty using his shower. An Occupational Therapist (OT) recommended the installation of a level access shower within a wet room to address problems caused by Mr C’s poor grip and the need to step into his shower.
Bolton operates its DFGs through Bolton Care and Repair. This is a home improvement agency which employs case officers to support applicants through the DFG process. It also employs surveyors who draw up specifications of works and can approach approved contractors for quotes. The report treats Care and Repair as delegates of the council’s own duties.
A Council letter said the works would be completed in around a year and that the social housing landlord had been advised of the proposed works which had been assigned a ‘priority three’ status, indicating the adaptations were to provide independence in daily living activities.
By July 2021, plans based on a (Council) surveyor’s visit were approved by Mr C and the OT. At the end of July 2021, a reassessment of Mr C’s needs [the report does not make it clear which department – Housing or the ASC team] determined that in addition to the needs which would be met by the adaptations, Mr C ‘would also benefit from’ care and support in other areas. Mr C declined Direct Payments for a PA.
In August 2021, Miss B sought an update on timescales for the adaptations after Mr C’s landlord’s offered to repair a leak in his shower door, which was increasing the level of hazard. From this conversation Miss B understood the adaptations might be completed in the next two months and, mindful that Mr C felt they would render the repair unnecessary, Miss B declined the repairs.
Around this time, the Council altered Mr C’s adaptations to a higher ‘priority 2’ status, without giving a reason. They subsequently stated the difference in status was immaterial as they were already seeking quotes for the work which were received by the end of August 2021.
In September 2021, the Council sought consent to carry out the works from the landlord, who then asked for more information, which the Council provided in October 2021. In November 2021, the landlord asked for further information from the Council. This was subsequently provided, but In December 2021, the landlord advised it was incomplete. In mid-December, supplemental information was provided and the following day the landlord consented to the works. Throughout these months Miss B remained in contact with the Council, advising that Mr C had endured several falls while using the shower.
In mid-January 2022, the Council completed Mr C’s grant paperwork. The Council advised Mr C it would offer “every assistance” to ensure completion of the adaptations but that he should contract directly with the contractor. A further month later, after enquiries from Miss B, the DFG (Disabled Facilities Grant) was approved and the Council clarified that it was Mr C’s responsibility to ensure the work was completed to a standard he found acceptable.
Thereafter, Miss B enquired with the Council as to when the proposed contractor could begin. By late March, no date had been offered. In April, the Council agreed to Miss B’s choice of contractor who began the adaptations in mid-May taking several weeks to complete them. During this time, Mr C did not have the use of his own shower and due to the lack of grab rails was unable to use his toilet. Miss B informed the surveyor about these problems, however, after an initial willingness to help, by June 2022 the surveyor had disengaged.
By late June, when the Council held a site meeting with the contractor, most of the problems, for example with the grab rails had been addressed; however, the toilet was still too low. Thereafter a plinth was fitted and at the end of July, Mr C confirmed his satisfaction with the works.
In April 2022, Miss B complained about the delays to the adaptations. The Council split the complaint into a) the OT assessment and priority assigned to the case and b) the administration of the DFG. Later Miss B submitted a second complaint regarding the difficulties with the contractors.
In response, the Council defended the priority given to Mr C’s application noting his ability to mobilise to the bathroom independently and step (with difficulty) into the shower cubicle. It also stated that some delays such as communication with the landlord and contractor were outside its control; that it was the OT’s responsibility to specify if a plinth was required for the toilet; that had it known about the contractor’s failure to fit grab rails, it would have provided a temporary frame, and that it had since initiated a process of step-by-step updates for people applying for DFGs.
In response to the LGSCO’s probing, the Council advised that the contractor ought to have compared the work specifications against the plans to ensure a plinth was provided, but that they were relatively new to Council procedures and had learned from these events. Also, that the Council knew the timescales for the works were not in keeping with government guidance, in place prior to March 2022 – ‘Delivering Housing Adaptations for Disabled People: a detailed guide to related legislation, guidance and good practice’ – but that it did undertake performance reviews regularly to try to make improvements.
What was found
Regarding the original priority given to Mr C’s adaptations – a Council policy document about this was not easy to follow, but did make distinctions between its priority bands according to the impact upon the person in need, of the lack of an adaptation. As such, there was no fault with this aspect of the matter.
Regarding Mr C’s placement in the priority 3 band – the January 2021 assessment did not identify a “significant” risk to Mr C or Miss B. However, it was not unreasonable for Miss B to have considered band 2 more appropriate. The Council exercised a choice between two bands and that decision could not be criticised unless it was taken as a result of fault. However, that was not the case here, given that no pertinent facts objectively compelling a higher banding appear to have been overlooked.
Regarding the length of time taken to complete the works – the LGSCO noted the Council did not follow best practice in setting out step-by-step timescales, but noted its intent to do so, going forwards. However, even without delays, Mr C was originally told the adaptations would take twice as long as the DFG guidance envisaged. Then, in actuality, the delays were even longer, taking around 19 months from the original enquiry and much longer than Mr C was originally told.
The Council attributed some delays to the landlord and contractor but the LGSCO found this not to be the case. A further cause of delay was the omission of a plinth and while this arose as a result of discrepancies between the plan and the work specifications in the hands of an inexperienced contractor, this did not remove the Council’s responsibility for some of the confusion and associated delays.
As such, delays due to Council fault and/or service failure did cause Mr C an injustice in having to struggle for an unnecessarily extended period, throughout which more of a health and safety risk was posed to him. The Council was also at fault in connection with its August 2021 conversation with Miss B which led her to believe the works would be completed by the end of the year, which it seems was never actually likely, but did cause Mr C to reject earlier repairs from his landlord and unrealistically raised Miss B’s expectations, which was an injustice.
Additionally, the Council failed to meet expectations relating to the difficulties with the building contractor. That is, the Council surveyor gave the impression that support would be available if difficulties arose, but there were around three to four weeks in June 2022 “when Miss B must have felt abandoned” by the Council. As such, the service fell short or what might have reasonably been expected, causing additional distress on top of that caused by the contractor.
The Council accepted these findings and agreed to action in keeping with the LGSCOs own guidance as to payment levels around the deprivation of modifications that would otherwise have improved daily life (between £150 and £350 per affected month).
The Council was required to pay Mr C £1,200 to recognise the distress and difficulties caused over eight months waiting for DFG works to be completed. Also, to apologise to Miss B and Mr C, accepting the findings of this investigation. Further, to pay Miss B £300 in recognition of her distress, inappropriately raised expectations, wrong advice on timescales, difficulties contacting the Council and worry for her father’s welfare.
The Council also agreed to learn wider lessons and that discussion of this case would inform the next review of the adaptations service which would discuss ways to improve performance to thereby meet government expectations on DFG works timescales; particularly regarding ‘stage three’ where the notable delays happened in this case and regarding improved communication with landlords regarding consent to works and reducing the otherwise lengthy processes involved.
Finally, within three months, the Council would complete and introduce improvement measures around keeping DFG applicants better informed as to likely timescales of each stage of the adaptations process.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Mr C was offered DPs to pay a PA after a ‘reassessment’ of his needs. There is no indication as to what became of his needs when he declined that form of help, and commissioning is the default response; direct payments are optional but the duty to meet needs is not thereby discharged if DPs are refused.
Additionally, the reference to the ‘reassessment’ finding that Mr C “would benefit from care and support in other areas” could be taken to convey that the Council was operating a form of Care Act lite, without complying with the whole framework.
So although local authorities do have a duty to consider whether an individual would benefit from preventative services, advice, information or community resources, this is not the same as saying that just because one would feel a beneficial effect from something that it can or will be found to be an eligible need and therefore provided in a care plan. Nor is this approach a lawful substitute for a finding of eligibility which triggers a duty to meet need!
The second area of note relates to the impotence of the required response, its message to all parties and its ability to discourage similar behaviours and drive improvements going forwards.
Simply, this appears to be yet another case where despite a litany of faults created by a Council acting outside its own policies and government guidance, and who, when challenged, sought to shift the cause of those faults onto other agencies, faces nothing more than minor consequences equivalent to a slap on the wrist. As such it seems reasonable to ask where is the incentive to do any better? Where are the measures capable of restoring trust and positive working relationships?
The government guidance referred to in this report is relatively new, https://www.gov.uk/government/publications/disabled-facilities-grant-dfg-delivery-guidance-for-local-authorities-in-england/disabled-facilities-grant-dfg-delivery-guidance-for-local-authorities-in-england.
It explains that DFGs will be paid to the applicant and that is why the contract is between that person and the contractor, but when Home Improvement Agencies were involved, they used to offer to supply the adaptation by contracting for it themselves, in our experience. Previous iterations of the Guidance confirm that this was the case and can still happen through informal schemes that obviate the need for a full DFG application.
We think that the change of direction may relate to the strategic context for the recent government guidance – that being the central government decision to redirect funding for DFGs into the Better Care stream which is subject to more input from Health and social care decision-makers and not just Housing Authorities. This excerpt repays some attention:
2.6 In two tier areas, district councils are responsible for home adaptations and provision of DFGs to eligible recipients. In these areas, county councils must work with district councils to agree the use of this funding, and ensure that sufficient funding is passed to districts to meet these duties. A portion of DFG funding can be retained to pay for social care and housing capital elements of joined up health, social care and housing projects at county level, where this is agreed with Districts (see para 2.12). Local authorities and local health and care commissioners can also choose to add to government funding for home adaptations from their own budgets.
2.7 Authorities may decide to spend government funding for the DFG in 3 ways:
- Approving DFGs in accordance with the Housing Grants, Construction and Regeneration Act 1996 (the 1996 Act) (see Appendix B: The legislation)
- Providing housing assistance in accordance with a locally published Housing Assistance Policy under RRO powers (see Chapter 3).
- Using a portion of the DFG funding for other social care capital funding purposes (as locally agreed with district councils in two-tier areas).
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The full Local Government Ombudsman report on the actions ofBolton Metropolitan Council can be found here: 22 005 023 – Local Government and Social Care Ombudsman