Decision date: 11/10/19
Mr B was an advocate for Mr C, who is an adult on the autistic spectrum and has challenging behaviours. Mr B had said to the council that the family would like for Mr C to return home to the family home from supported living accommodation if possible.
In the past, Mr C has been physically aggressive towards family members. The family home only had one bathroom which Mr C would sometimes occupy for a substantial amount of time, causing the family an amount of tension and stress.
In February 2016, Mr C’s father had asked the Council to consider installing a second bathroom. An occupational therapist (“OT”) assessed Mr C and noted that it would be difficult to make the case for a DFG (Disabled Facilities Grant) as the problem was not about his being able to access the bathroom, but rather the time he spent in it.
The Council completed a care and support assessment for Mr C in April, which noted the difficulties caused by Mr C’s spending up to three hours in the bathroom.
Mr C spent time in hospital between July and September 2016 for treatment under the Mental Health Act 1983.
When he was discharged, the Council considered the request for an extra bathroom again. It said it would explore the underlying reasons behind this need and assess whether it was linked to his autism, before taking it further with an OT. The Council had further internal discussions but did not go forward with a DFG application as its social worker believed it would be unsuccessful.
In October 2016, Mr C’s father reported an incident to the Council in which Mr C was aggressive towards his mother when she tried to access the bathroom. The social worker said again that the Council would look at modifying Mr C’s behaviours, first. The social worker asked health professionals to complete an assessment of Mr C’s needs in relation to needing his own bathroom space. However, it is not clear if this task was ever completed or what the result was.
In June 2017 Mr C’s parents met with the Council and again raised the request for a bathroom. A social worker advised the family that the matter was with management. In the same month, the OT who did the initial assessment in 2016 noted that her colleague had made a case for Mr C having his own bathroom and she asked the social care team to discuss with the DFG team whether a grant may be possible. There is no evidence of any discussions with the DFG team until 4 months later in October 2017, when Mr C’s father raised the issue again. Shortly afterwards, an officer from the DFG team confirmed in an email that it was unlikely the Council would grant a DFG.
An updated care plan for Mr C dated November 2017 said that the Council had categorically not agreed funding for an extra bathroom. This was the first time that an actual decision had been communicated.
In December 2017 Mr C’s father went away for between three and six months and made it clear that he would not be there. The Council could not find any respite providers that felt they could meet Mr C’s needs and Mr C went into hospital shortly afterwards due to a breakdown in his behaviour.
In January 2018, the service manager for the DFG team emailed the social worker to say there was no option for the Council to fund a second bathroom through a DFG.
In March 2018 the Council considered discharging Mr C from psychiatric hospital to a residential home. Mr C’s said he preferred to return to the family home.
In a general aftercare meeting in April 2018, professionals all agreed the benefits of a second bathroom in reducing stress in the family home if he did return.
Mr B contacted the Council again in May 2018 and asked if it would fund a second bathroom. The Council did not give a substantive response.
Mr C moved to a residential home in July 2018.
The matter was reviewed in August by a team manager for DFG team, who felt that the Council might fund a second bathroom by way of a DFG on safety grounds. However, the Council did not pursue a DFG at this time due to potential safeguarding concerns and the fact that Mr C was in residential care.
The Ombudsman believes adult social care team and DFG teams have had several discussions about the funding of second bathrooms and sought legal advice on this issue. The Council does not have records of past internal correspondence, so it is unknown when these discussions took place or when it sought legal advice. The discussions seemed to have been around the circumstances of cases such as Mr C’s, rather than specifically about his individual case.
Mr B submitted a formal complaint in September 2018. In January 2019, the Council said a director wished to meet with Mr B and Mr C and would contact them to arrange a meeting. However, Mr B did not receive any contact and so chased again in March 2019. He received a short response that did not give any timeline for conclusion of the complaint. The Council has not provided any final response to the complaint by Mr B.
The Council is now re-assessing Mr C’s case.
What was found
Mr C’s living situation had changed several times during the period complained about.
The Ombudsman did not find fault with the initial assessment of Mr C in February 2016. It was found that the OT had properly reviewed Mr C’s case and reached the decision. There was also no fault found in the Council not having considered the possibility of funding the adaptations under the Care Act, as the OT’s assessment was that there was not enough evidence to support the adaptation, which the Ombudsman viewed as essentially meaning no. There was no fault found in how the Council had communicated its decision to Mr C’s family at this time.
After Mr C returned from hospital in September, the need for a second bathroom was highlighted again, and this time was supported by several professionals who all agreed a second bathroom would be in the interests of Mr C’s wellbeing.
The Ombudsman did not find fault with the Council’s decision to explore possible changes to Mr C’s behaviour before funding a bathroom, as it again looked at all the circumstances of the case and made a decision to assess ways to address the underlying problem, which it communicated to the family.
However, the Council had still not completed an assessment in January 2017. There was then a six-month gap in which it was not clear if the assessment was completed and there was no evidence that the Council chased for this or considered any alternatives.
In June 2017, when Mr C’s father raised the request again, the Council appeared to start from scratch. There was no indication it made any decisions based on the outcome of any behavioural needs assessment, and it simply went back to ask the same questions of the DFG team.
The DFG team again said it would not fund a case such as this and therefore the Council did not facilitate the making of an application for any DFG. It indicates it then considered whether it might fund the adaptation under the Care Act. However, there is no evidence it made any actual decision about whether it would do so.
Nor is there evidence that it provided any response to Mr C’s family, and the Council still had not resolved the issue or reached any decision when Mr C went back into hospital in January 2018.
This meant the Council made no clear decisions about whether it could fund the adaption for nearly 18 months, leaving Mr C’s family in the dark.
Mr C was in hospital until July 2018. It was not clear when he would be discharged and whether he would return home. Therefore the Ombudsman understood why the Council delayed dealing with the request for a second bathroom through this period. However, it could have made a decision during this time, even if that decision was dependent on whether Mr C returned home.
There was no fault found in the decision not to apply for a DFG in August 2018 as it was clear the Council considered all relevant factors and made an informed decision. However, the delays in making this decision and poor communication with the family and Mr C’s representative did amount to fault.
The Ombudsman could not find any evidence that the Council had ever given a substantive response to the complaint Mr B submitted in September 2018.
The Council had nearly 18 months to reach a decision and a further eight months to a year to respond to the complaint. It is clear the family felt that the lack of a second bathroom was a key stress factor in their living circumstances and that it contributed to problems with Mr C’s behaviour and even violent confrontations in the home. The Council’s failure to make any decision or communicate this to the family clearly caused a significant amount of avoidable uncertainty and stress over a long period of time.
It seems that Mr C did ultimately move into supported living. The Council did make a decision in 2018, which was that it was not appropriate to consider an adaptation at that time. The Council said to the LGO that Mr C’s circumstances have changed since and it will now re-assess his living circumstances.
The Council has agreed to, within a month:
- Apologise to Mr C’s family for the delays in assessing their request for an adaptation and responding to the complaint.
- Pay Mr C’s family £400 for the distress and uncertainty caused.
- Re-assess Mr C’s living situation and the request for an adaptation, make a decision and communicate this with detailed reasons to the family and Mr B.
Points for the public, service users, councils and families
This report makes us want to scream, in terms of aggravation at what people in difficulties are put through. Public law requires consideration of all relevant factors, and of course this takes time.
It’s not clear in this case whether there was a need that was under the Care Act or a need under the Mental Health Act (s117) – he was in hospital for treatment, but that may have been as a voluntary patient, rather than under s3.
There is no doubt that this man could not achieve daily living activities without significant anxiety and distress; and we are sure that it could have been decided that a second bathroom would meet that need.
That is not to say that that compels provision or could be the only way that the need could be met. If he had been housed in supported living, he would not have got a separate bathroom, and living at home probably had other obvious advantages for both the client and the commissioners.
Public law says that when one is considering whether something is needed by way of a response to meet a need one can have a policy, but not treat it as a rule. Judgement has to be exercised, actively, in individual situations.
But s6 of the Local Authorities and Social Services Act 1970 requires Directors of Social Services to be furnished by their councils with sufficient staff for the discharge of their functions, and of course assessment under the Care Act could have led to the provision of a bathroom specifically as a facility (s8). The old law referred to aids and adaptations, and the new law did not simply get rid of that option!
There’s nothing wrong with trying other options before accepting that there’s only one way to meet a need, but when one gets to that point, it’s what the duty in the Care Act is for.
We think it’s interesting that the LGO identified the discretion under Section 3 of the Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 (“the Order”), to provide adaptations for the purpose of improving a person’s living conditions, but could not find any indication that anyone had taken any legal advice about how that discretion might be considered against the bottom line / last resort possibility of the Care Act.
If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.
The full Local Government Ombudsman report on the actions of City of Bradford Metropolitan District Council can be found here: