Decision Date: 21st May 2021
What Happened
Mr X complained on behalf of his late wife, Mrs X.
Mrs X had a terminal illness and Mr X was exclusively caring for her himself at home. Mrs X was sleeping in the living room as she could no longer navigate the stairs. Mr X contacted the Council in August 2020 to ask for support regarding aids or adaptations that could be made to the house, specifically, a stairlift.
Before any assessment, an Occupational Therapist (OT) spoke to Mr X, and told him that it would be at least 18 months before any works could be done. Mrs X was not likely to live that long.
The Council contacted Mr X in October 2020 to organise a date for Mrs X’s assessment. Unfortunately, Mrs X had already passed away.
Mr X complained to the Council about the delay. The Council apologised and explained that it had a backlog of requests for OT assessments, and the delay in catching up was due to COVID-19 and staffing numbers. Mr X remained unhappy and complained to the LGSCO.
What was found
Mr X was told that it would take 18 months before an OT could assess Mrs X. The OT did not explain that there was a big backlog, or that cases were prioritised on how urgent they were, and that Mrs X’s case would be treated as urgent. This was fault. The LGO considered that the Council’s apology was sufficient, however.
The Council explained to the LGO that there are delays for OT assessments because of a drop in staffing levels and ongoing difficulty recruiting new OTs. This is a national problem, not unique to this council, and has led to the government listing Occupational Therapy as a ‘shortage occupation’.
The Council also highlighted the impact of COVID:
- In January 2020 (pre-COVID), the Council had 178 outstanding OT requests, the oldest of which was 9 months.
- By August 2020 there were 293 outstanding OT assessments, the oldest of which was 15 months
- The average time between referral and assessment was 142.5 days.
The Council told the LGO that it had taken the following action to address these problems:
- From September 2020, all OTs are managed by one person to allow the Council to better manage workloads and address urgent cases.
- The Council recruits locum OTs to target the longest wait times.
- The Council has recruited three new OTs and was interviewing for a fourth.
The Council volunteered to write a further apology to Mr X setting out the above information. The LGO welcomed this.
The LGO highlighted that the person who suffered the most injustice in this case was Mrs X. However, that there was no remedy for this as she had died. The Ombudsman found that Mr X also suffered injustice. The provision of other aids may have enabled him to care for his wife with greater dignity at the end of her life. The fact that he had not had the opportunity to identify if aids would help meant he would always have uncertainty about whether things could have been different. The Ombudsman found this to be an injustice to Mr X.
The LGO recommended that the Council pay Mr X a further £250 in recognition of the uncertainty caused by its delay.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The interesting point about this report is that the fault relates not to the delay itself – as if that is something that the Ombudsman regards as out of scope for criticism perhaps – but to the lack of clarity about why there was a delay.
It might be assumed that an 18 month wait for a service that is a mandatory duty once one has qualified and critical to accessibility and daily life would, in itself, be an automatic breach of something. However, there are no specific timescales on the Government information about Disabled Facilities Grants beyond saying that a decision must be given by the Council within 6 months of the assessment. The 1996 Act sets a maximum period of 6 months for a local authority to decide an application (s34). The works must usually be completed so far as deferring payment of the full grant, within 12 months of the approval date (see Appendix B, para B131).
The government’s guidance says this:
B117. The powers under (section 36)(to defer payment for 12 months from the date of the application) should be used sparingly and not where it would cause hardship or suffering to an applicant whose adaptation needs have been assessed as urgent, for example where a disabled person will be leaving hospital or residential care to return home or to move into a new dwelling. It is also likely to be inappropriate to use the (section 36) power where the long-term costs of doing so would be disproportionate to the short-term savings.
B118. The DFG is a mandatory grant and the refusal to accept applications due to a lack of resources is unlawful.
The Ombudsman did not find fault simply because there was an 18 month wait.
The issue was that the lack of explanation meant that it was not possible for Mr and Mrs X to know whether this delay was reasonable. If there is a waiting list, for what is a mandatory duty, then within the timescale for completion of the process through to implementation (which is one year) then the Council must actively manage that waiting list to ensure that people are prioritised appropriately. If they are doing this, then they must tell people why they are regarded as more or less urgent. It was the lack of reasonable explanation and, therefore, transparent procedural fairness that was the problem.
Councils can learn from this. Councils must attend to: firstly, whether the length of time people are waiting is reasonable for the relevant duty – it may be reasonable to wait say 5 months for a decision on a home adaptation and a few more months for its implementation, but only two days for a safeguarding inquiry; and, secondly, to the procedural fairness of how long people wait, depending on their particular situation – it may be reasonable for one person to wait four weeks for a needs assessment but their neighbour to only wait three days.
Public law principles include acting rationally, fairly, and compatibly with the human rights of those affected. Without transparent explanations about decision making on timescales, it is impossible to meet those principles. The Ombudsman will, we think inevitably, find fault.
The Ombudsman also found injustice to the carer who would forever wonder whether things should have been different. This is a compelling reason to a Council to explain its workings out and prioritise appropriately. Sometimes there is no ‘do-over’ and, always, people have to live with the consequences of public decisions. Knowing that a decision was fair, even if it was not what was hoped for, helps.
The full Local Government Ombudsman report of Derbyshire County Council’s actions can be found herehttps://www.lgo.org.uk/decisions/adult-care-services/disabled-facilities-grants/20-004-090