16.1Provision of housing accommodation
It is beyond the scope of this book to cover housing legislation in general. This chapter therefore makes only passing reference to the interface between housing and social services legislation in terms of provision of accommodation and also a scheme of assistance called Supporting People. In addition, it touches on three particular aspects of the Disability Discrimination Act 1995 relating to (a) landlords and premises, (b) eviction, permission to adapt a dwelling, and (c) the making of reasonable adjustments including provision of auxiliary aids and services.
It does however set out in more detail the law concerning home adaptations, provision of which overlaps in several significant respects with social services legislation. Adapting people’s homes was recognised in the original community care policy guidance as a key method of enabling people to remain in their own homes (DH 1990, para 3.24).
The system of home adaptations is subject to considerable complexity, relying as it does on a high degree of cooperation between local social services authorities and local housing authorities, and on more than one set of legislation. Local housing authorities operate a system of disabled facilities grants (DFGs) under the Housing Grants, Construction and Regeneration Act 1996. If certain conditions are met, a strong duty arises to approve the grant, subject to a statutory means test to determine how much the applicant should contribute financially. In addition, housing authorities have a broad discretion to assist in other ways, apart from these mandatory grants, under the Regulatory Reform (Housing Assistance) (England and Wales) Order 2002. Local social services authorities, too, retain responsibility for assisting with adaptations under s.2 of the Chronically Sick and Disabled Persons Act 1970.
The system of adaptations has been beset by funding problems in relation to demand, and consequently by long waiting times. Local housing authorities in some areas attempt to dilute the duty to approve disabled facilities grants by deploying a range of restrictive policies, some of which are legally dubious. This is because the strong duty to award such grants does not allow as many lawful, as opposed to unlawful, ‘escape routes’ as other, weaker legislation might do (see Chapter 3). In addition, both local housing and social services authorities sometimes attempt to exploit their divided responsibilities for home adaptations, by engaging in disputes and passing the buck from one to another. Practice in local social services authorities seems to vary considerably, some providing substantial assistance for major adaptations under s.2 of 1970 Act, others being most reluctant to do so.
Strangely, given the extent to which the relevant legislation is stretched to its limits by local authorities when it is not being disregarded altogether, few cases have reached the courts about on home adaptations. However, this dearth of legal cases is balanced by the large number of investigations conducted by the local government ombudsmen into the provision of home adaptations.
16.1 PROVISION OF HOUSING ACCOMMODATION
Principal duties in terms of allocating public sector housing and providing accommodation for homeless people lie under the Housing Act 1996. Nevertheless, in a number of cases local social services authorities have been found unprepared for the courts’ findings that, in certain circumstances, they too have a duty to provide ‘ordinary’ accommodation under s.21 of the National Assistance Act 1948. In other words, some local social services authorities have in the past assumed that any duties in respect of ordinary accommodation might extend to making referrals to housing authorities (e.g. under s.47 of the NHS and Community Care Act 1990), but not to social services authorities themselves arranging the accommodation. The courts have not always shared this view (see 9.2.1 above).
16.2 COOPERATION BETWEEN HOUSING AND SOCIAL SERVICES AUTHORITIES
Various legislative provisions entail cooperation between social services and housing authorities. For instance, s.47 of the NHS and Community Care Act 1990 places a duty on the local social services authority to invite a housing authority to assist in a community care assessment (see 6.5). The Housing Grants, Construction and Regeneration Act 1996 places a duty on local housing authorities to consult with local social services authorities about whether a disabled facilities grant is necessary and appropriate.
In addition, social services authorities have a duty of cooperation with housing authorities generally in respect of housing allocation and homelessness, and specifically in respect of children (Housing Act 1996, ss.213-213A). Likewise housing authorities have a duty of cooperation with social services authorities under s.27 of the Children Act 1989; and social services authorities have a duty to assist housing authorities with the formulation of a local homelessness strategy and to take it into account when exercising their functions (Homelessness Act 2002). Nevertheless, such duties of cooperation only go so far, as the courts may feel unable to enforce them:
Duty of cooperation: limited enforceability. A housing authority decided that it had no duty to secure permanent accommodation for a homeless family (because it judged that the homelessness was intentional). The social services authority then declined to exercise its power to give assistance in cash to the family – as part of its duty to safeguard and promote the welfare of the children – under s.l7(6) of the Children Act 1989. Instead it tried to rely on s.27 of the 1989 Act which stated that it had the power to request the assistance of other authorities, who ‘shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions’. The housing authority, unsurprisingly, having already assessed the application in the negative, now refused to offer long-term accommodation.
On the issue of cooperation between authorities, the House of Lords stated that the ‘two authorities must cooperate. Judicial review is not the way to obtain cooperation. The court cannot decide what form cooperation should take. Both forms of authority have difficult tasks, which are of great importance and for which they may feel their resources are not wholly adequate. The authorities must together do the best they can. In this case the housing authority were entitled to respond to the social services authority as they did’ (R v Northavon DC, ex p Smith).
16.3 SUPPORTING PEOPLE
During the 1990s, a number of challenges were made about the type of service that could legitimately be covered by housing benefit (e.g. R v North Cornwall DC, ex p Singer; R v St Edmundsbury Housing Benefit Review Board, ex p Sandys: concerning counselling and support services).
As a consequence, changes were made to the housing benefit system, and funding for a number of housing support services, formerly paid through housing benefit, is now available instead through a central government funded scheme, administered by local authorities. Under the umbrella of a policy called Supporting People, such services are to be distinguished from community care services, since it is not part of a local authority’s social services functions.
The basic legal framework consists of the Supporting People (England) Directions 2007, the Supporting People Programme Grant and Grant Conditions 2007, the Supporting People Programme Grant and Grant Conditions for Excellent Authorities 2007, the Supporting People Guidance 2007. These all emanate from the Department for Communities and Local Government. For people receiving housing benefit on 31 March 2003, charges may be made under the Local Authorities (Charges for Specified Welfare Services) (England) Regulations 2003 (SI 2003/907 – otherwise charging is through the powers contained in s.93 of the Local Government Act 2003. Funding and provision decisions are the responsibility of the ‘administering authority’ (the local authority, other than an ‘excellent authority’) and of the commissioning body within the local authority’s area which must implement the Supporting People strategy and arrangements.
Guidance, aimed at all local authorities except those deemed to be excellent authorities (which are not subject to detailed rules), explains that eligible welfare services are defined as being housing-related support services, with a view to developing or sustaining an individual’s capacity to live independently in accommodation. They should be distinguished from general health, social services or statutory personal care services. Any service provided as part of a statutory duty is not eligible for supporting people funding (DCLG 2007, p.8).
For instance, an eligible service might help with life skills such as cooking or budgeting – or the general support of a visiting support worker to give the person confidence to sustain his or her own home. The guidance states that Supporting People services should focus on developing or sustaining more independent living skills. ‘Occasional welfare services’ can also be included – for instance, arrangements for tidying the garden of an elderly person (perhaps to allow support workers to access the property to deliver support), and services provided for the carrying out of maintenance and minor repairs to a vulnerable person’s home through a handyperson scheme. Otherwise, welfare services must be part of an agreed package of support services, not ad hoc (DCLG 2007, pp.8-9).
Supporting People services are not aimed at the general public but at people at risk of losing their own home due to an inability to cope, for reasons such as homelessness, rough sleeping, previous imprisonment, mental health problems, learning difficulties, domestic violence, teenage pregnancy, vulnerability due to age, drug and alcohol problems, physical or sensory disability, HIV or AIDS, and being a refugee etc. (DCLG 2007, p.11).
Specifically excluded from Supporting People are residential care, the type of service provided by a registered care provider, personal or nursing care, services that local authorities have a statutory duty to provide, building works (other than advice and personal support services), equipment (e.g. stairlifts or specialist adaptations), psychological therapy or therapeutic counselling, services to enforce court of law requirements, and general housing management services (Supporting People Programme Grant and Conditions 2007, schedule 1).
The need to draw a dividing line, between Supporting People welfare services and other services provided under statute, became clear in the following case, in which the court held that a number of services being provided should have come under community care legislation and not Supporting People:
Relationship between Supporting People and community care services. A local authority assessed a person with significant health problems related to Still’s disease (a form of rheumatoid arthritis) involving frequent, painful and highly debilitating flare-ups; he was also nearly blind. It had categorised some of his needs as moderate only, in particular cleaning, shopping, and attendance at appointments. This meant that under the authority’s ‘fair access to care’ eligibility criteria, those needs would not attract social services support. Instead these needs were met through the Supporting People scheme. However, because they were related to the man’s health care condition, the court held that these needs should all have been assessed as coming within the critical category of the eligibility framework, and so been provided as community care services, and not through Supporting People (R(Heffernan) v Sheffield CC).
16.4 DISCRIMINATION IN MANAGEMENT AND LETTING OF RESIDENTIAL PREMISES
Under the Disability Discrimination Act 1995 (DDA), it is unlawful to discriminate against disabled people in the selling, letting or management of residential premises.
Discrimination could occur in relation to the terms of disposal of premises, to refusal to dispose, or to the way in which a disabled person is treated in respect of a list (e.g. waiting list or register for allocation of housing) of people in need of the premises (DDA 1995, s.22).
In terms of management, discrimination against a disabled person occupying the premises could occur in relation to (a) the way in which the disabled person is permitted to make use of any benefits or facilities; (b) refusing or omitting to allow the disabled person to use such benefits of facilities; (c) evicting the person or subjecting him or her to any other detriment.
Discrimination means less favourable treatment of the disabled person for a reason relating to the person’s disability – and which the other person cannot show to be justified.
16.4.1 JUSTIFYING LESS FAVOURABLE TREATMENT
Less favourable treatment is justifiable if, in the other person’s opinion, certain conditions are satisfied. However, it must also be reasonable in all the circumstances of the case for him or her to hold that opinion.
The conditions relate to (a) health and safety; (b) incapacity to make an enforceable agreement; (c) that the less favourable treatment is necessary in order for the disabled person or the occupiers of other premises, forming part of the building, to make use of a benefit or facility; (d) that the refusal to allow the disabled person to make use of a benefit or facility is necessary in order for the occupiers of other premises forming part of the building to make use of the benefit or facility (s.24). There is a small dwellings exemption (DDA 1995, s.23). The following case illustrates a health and safety justification which was successfully argued in the Scottish courts:
Refusing to let a flat. A blind person with a guide dog was refused by a landlord the let of a flat for a week during the Edinburgh Festival. This was on the grounds of the absence of a suitable handrail on the steps leading up to the flat. The man brought a case in the Scottish courts under the DDA. The landlord argued a health and safety justification for the less favourable treatment; he succeeded because he brought forward genuine evidence including his attempts to get a suitable rail installed, and also his past letting of premises to disabled people. In particular, the court held that the opinion of the landlord was a reasonable one for him to have reached. He knew that the man was blind and used a guide dog, that the steps without a handrail posed a threat to safety because of the unguarded drop on both sides. This threat to safety was subsequently confirmed by an environmental health officer (Rose v Bouchet).
In respect of the eviction of tenants, several cases have reached the courts in which possession orders by landlords were disputed with reference to the DDA. These cases centred on whether, in the case of assured or secure tenancies, it was reasonable under the Housing Act 1985 for the court to grant the possession order sought.
Even before the advent of the DDA, the courts sometimes found that such an order would be unreasonable: for example, if the tenant suffered from a mental disorder that might be amenable to treatment (Croydon LBC v Moody). However, the judgment of what is reasonable now has to be made in the light of the DDA.
The questions to be asked in such cases are whether: (a) the tenant disabled within the meaning of the DDA; (b) if so, is the reason (e.g. aggressive or antisocial behaviour) why the landlord is seeking possession related to the tenant’s disability; (c) if so, is there a health and safety justification for the less favourable treatment (which treatment would otherwise inevitably constitute discrimination). In the first of these cases, the possession order was denied:
Possession order denied on grounds of discrimination. A tenant of a housing association was in a chronic state of conflict with her neighbours. She had been diagnosed as suffering a form of paranoid schizophrenia. Following police and social services involvement she was transferred to another property. She continued to be disagreeable and aggressive. She kept the neighbours awake at night by banging and shouting, and used abusive language and rude gestures. The landlord brought possession proceedings. The High Court concluded that there was no doubt that she suffered from a psychotic disorder and that her behaviour stemmed from her illness. Thus the only justification for the eviction would be on grounds of health and safety; but the court found no evidence that the landlord had considered the eviction necessary on such grounds. Nor did the court find that the physical health and safety of neighbours had actually been at risk (North Devon Homes v Brazier).
However, in two subsequent Court of Appeal cases, the tenants failed in their objections:
Possession orders not discriminatory. A tenant had a depressive mental illness, which meant that she was regarded as disabled under the DDA. The courts held that the conduct complained of- loud hammering and music during the night – could reasonably be held to be endangering the health of a neighbour who was a driving examiner and suffering sleep deprivation as a consequence of the nightly disturbance. In addition, the court anyway doubted whether the music and hammering could be linked to the mental impairment – in which case no issue would arise under the DDA.
A second tenant suffered from a personality disorder, producing violent behaviour, depression and anxiety. The court concluded that by reason of her illness she was unable to learn how to cope with stressful situations and to react appropriately. This resulted in abusive language toward a neighbour and her children; the neighbour was on anti-depressants, felt suicidal and could not leave her house without being called names. The evidence from the neighbour to this effect was sufficient to constitute reasonable justification on health and safety grounds.
The court said that it was enough if a person’s health or safety was endangered, not necessarily seriously; it did not have actually to be damaged (Manchester CC v Romano).
Nevertheless, in the Manchester judgment, the Court of Appeal heavily criticised the way in which the DDA had been drafted and predicted a possible deluge of such cases with possible unfair and absurd consequences. In the meantime it suggested that local authority landlords would need to liaise more closely with social services at an earlier stage, in order to try to deal with problems that could lead to attempted eviction. The court was further concerned that a landlord might perform a discriminatory act, contrary to the DDA, even when it did not know that the tenant was disabled.
In a later case, the Court of Appeal (which was subsequently overruled) held that a notice to quit did constitute discrimination, on the basis that there was a link between the person’s schizophrenia and his subletting of his flat – which was a breach of the tenancy agreement and the reason why the possession order was sought:
Link between schizophrenia and the breach of the tenancy agreement: possession order sought was discriminatory. A man suffering from schizophrenia sublet his council flat in breach of the tenancy agreement. The local authority sought a possession order. The court held that he was protected under the DDA.
First, he should have been regarded as disabled under the Act. In terms of whether his disability had a substantial adverse effect on his ability to carry out normal everyday activities, the right question was to ask was whether the effect was more than minor or trivial.
Second, it had to be shown that the local authority was seeking to evict him for a reason relating to his disability. However, whilst his disability had to be related to the action in question, the subletting, it did not have to the sole cause of the action, nor did it have to be a matter without which the action would not have occurred. At the time of the subletting he had not been taking his medication, and there was no evidence that he had approved the subletting in a lucid phase when he was able to understand the consequences of it. However, there was evidence that the nature of his condition led to distortions in thinking; this was sufficient to establish the link, the relationship, between his disability and the action, the subletting.
Lastly was the question of whether the local authority had to be aware of the disability for discrimination to be shown. The court held that less favourable treatment can occur even if the local authority did not know of it. In any case, the court pointed out that the local authority could have asked why he sublet the flat, and could have spoken to the social worker about the man’s unmedicated schizophrenia. On this basis the possession proceedings were dismissed, and the notice to quit was held to constitute unlawful disability discrimination (Malcolm v Lewisham London Borough Council).
The Court of Appeal had found discrimination on the basis that the claimant had been treated less favourably (for a reason relating to his disability) than another person (to whom that reason did not apply) would have been treated. Following previous case law, the Court of Appeal had taken this ‘reason relating to his disability’ to mean that the comparison should be with a person who had not sublet a flat, as opposed to the more obvious comparison with a non-disabled person who had sublet a flat. The Court of Appeal’s approach was on the basis that (a) the subletting of the flat was the ‘reason’, and (b) it related to the disability, because without the latter, the subletting would arguably not have taken place. The Court of Appeal had also confirmed that it made no difference that the local authority didn’t know about the disability.
The House of Lords, on further appeal, was in no doubt that the Court of Appeal had got it wrong. First, the House was clear that the comparison should be with another statutory tenant, with no mental illness, who had sublet (although one of the five law lords strongly dissented on this point). Second, there was no evidence that the local authority was aware that the tenant was mentally ill. For there to be discrimination, it had to be shown not only that there was a causal connection between the disability and the subletting, but that the mental condition played a motivating part in the council’s possession proceedings. The local authority won its appeal (Malcolm v Lewisham LBC).
On the other hand, when a person had got into rent arrears because the landlord had increased the rent, but did not suggest that his disability was the reason for non-payment of rent of 132 weeks, no question of unlawful discrimination could anyway arise (S v Floyd).
16.5 HOME ADAPTATIONS: DISABLED FACILITIES GRANTS
Home adaptations have, since 1990, been identified as a key part of community care. Continually, too, it is argued that they represent an effective, and cost-effective way, of meeting people’s needs (ODPM 2005a, p.5; Heywood and Turner 2007).
In October 2005, the government published a review of the system of disabled facilities grants which, though identifying certain strengths, highlighted a long list of problems, at the heart of which were an absence of strategy and of adequate funding. This led to, amongst other things, older people being screened out inappropriately from the process, delays with serious consequences, inequalities, grant amounts falling short of building costs, an unfair test of resources (means-test), lack of suitable staff to carry out assessments, and insufficient capital resources in local authorities to provide adaptations to which people were entitled by statute (ODPM 2005a, pp.4-10).
Following this review, the government then consulted on possible changes to the system. These included:
•increasing the maximum grant payable to £30,000 and maybe up to £50,000
•placing a charge (applicable up to ten years) on an adapted property in owner occupation (enabling the grant to be recouped when the property is sold
•changing the test of resources (e.g. ‘passporting’, on the basis of other social security benefits received, easier – or taking into account outgoings in term of housing costs)
•clarifying the question of adaptation of gardens to enable access
•simplifying the funding system for housing associations
•increasing the use of home improvement agencies in the delivery of home adaptations
•define stairlifts as equipment which would be provided through social services, rather than as major adaptations (DCLG 2007).
In February 2008, a number of changes were duly announced. From April 2008, these were to be:
•maximum grant to be raised to £30,000
•changes to the means test meaning applicants claiming council tax benefit, housing benefit and tax credits won’t have to provide any further financial information, and working tax credit and child credit will no longer count as income
•enabling a local authority, where it deems it to be appropriate on a case by case basis, to place a charge on the property. This is where the cost of the DFG exceeds £5000. The maximum charge will be £10,000
•change to the legislation to make it clear that access to gardens is potentially mandatory
•transfer of Social Housing Grant from the Housing Corporation to local authorities as part of the ‘DFG baseline’
•cessation of the arrangement whereby 60 per cent of funding for DFGs came from central government, matching the other 40 per cent provided by the local authority
•the removal, ultimately in 2010-11, of the ‘ring-fencing’ of DFG funding provided by central government (DCLG 2008).
16.5.1 HOME ADAPTATIONS: DISABLED FACILITIES GRANTS (DFGS)
Under the Housing Grants, Construction and Regeneration Act 1996 (HGCRA), housing authorities have a duty, if certain conditions are met, to approve applications for disabled facilities grants for the carrying out of home adaptations.
The conditions are basically that (a) the adaptation in question falls into one of the purposes in the Act that attract mandatory grant; (b) if so, that it is necessary and appropriate; (c) if so, that it is also reasonable and practicable. The three questions should be asked and answered logically and discretely; not to do so has been held by the courts to be unlawful:
Collapsing two questions/answers into one. In one case involving a loft conversion to provide an extra bedroom for a boy with autism, the local authority’s reasoning in effect stated that the works were not necessary and appropriate because there was no clear case for a mandatory grant. The court held that this was impermissibly to collapse the first question about the mandatory nature of the grant with the second question as to whether it was necessary and appropriate (R(B) v Calderdale MBC).
16.5.2 PURPOSES FOR MANDATORY DISABLED FACILITIES GRANT
The 1996 Act lists a number of purposes that will in principle attract mandatory grant. These are to facilitate access by the disabled occupant:
•dwelling: to and from the dwelling (including the garden: SI 2008/1189)
•family room: to a room used as the principal family room
•sleeping room: to, or providing for the disabled occupant, a room used or usable for sleeping
•lavatory: to, or providing for the disabled occupant, a room in which there is a lavatory – or facilitating its use by the disabled occupant
•bath, shower: to, or providing for the disabled occupant, a room in which there is a bath or a shower (or both) – or facilitating its use by the disabled occupant
•washhand basin: to, or providing for the disabled occupant, a room in which there is a washhand basin – or facilitating its use by the disabled occupant (s.23).
Other purposes are:
•safety: making the dwelling or building safe for the disabled occupant and other persons residing with him
•cooking: facilitating the preparation and cooking of food by the disabled occupant
•heating: improving any heating system in the dwelling to meet the needs of the disabled occupant or – if there is no existing heating system or an existing system is unsuitable for use by the disabled occupant – providing a heating system suitable to meet his needs
•use of power, light, heat: facilitating the use by the disabled occupant of a source of power, light or heat by altering the position of one or more means of access to, or control of, that source – or by providing additional means of control
•disabled occupant as carer: facilitating access and movement by the disabled occupant around the dwelling in order to enable him to care for a person who normally resides in the dwelling and needs such care (s.23).
As detailed immediately above, the legislation, together with the guidance (see below), provides a firm base from which to answer the question as to whether the proposed works will in principle attract mandatory grant.
16.5.3 SAFETY IN THE DWELLING
Guidance from central government gives examples of adaptations relating to safety. These include provision of specialised lighting, adaptations to minimise the danger if a disabled person has behavioural problems, enhanced alarm system in connection with cooking facilities, fire escapes, toughened or shatterproof glass, fire or radiator guards, reinforcement of floors, walls or ceilings, and cladding of exposed surfaces and corners to prevent injury (ODPM 2006, annex B, para 18-20). The examples indicate just how wide the safety purpose goes. The Court of Appeal has considered the implications of the safety purpose in the circumstances of the following case:
Additional bedroom for safety. The parents of a boy with autism applied for a loft conversion. The boy had for the last few years subjected his younger brother, with whom he shared a bedroom, to dangerously inappropriate horseplay and to violent interference with his sleep, day after day, night after night. The local authority declined to approve the application on the ground that the danger to the younger brother was confined to the shared bedroom; therefore an extra bedroom would still not make the dwelling safe for him. The High Court upheld the local authority’s argument; the case went to appeal (R(B) v Calderdale MBC).
This judgment was overturned by the Court of Appeal, which ordered that the local authority re-take its decision. This was on the basis that the works could not necessarily be expected to make the premises completely safe for the disabled person and other people he lived with. The question was whether it was enough if the works simply made the premises (a bit) safer, or whether there was some threshold of safety that the works would have to get over, in order for them to be deemed necessary and appropriate:
Reducing risk. The Court of Appeal found that there was a threshold, namely that the proposed works must minimise the material risk – in other words reduce it as far as is reasonably practicable, if it could not be eliminated. In turn, this would mean that it would be immaterial even if there were other areas of risk that the works did not ameliorate (R(B) v Calderdale MBC).
The Act refers to the safety of the disabled occupant and other people living with him or her:
Safety of other people. The court held that so long as the safety of the disabled occupant is involved in some way, a grant would not be precluded; there was not a requirement that the principal purpose of the works be the safety of the disabled person. For example, a fire escape or cooking alarm might benefit several other occupants of a dwelling, and not just the disabled occupant. Thus, the fact that the disabled occupant (who might injure himself) was not the immediate and direct source of danger did not preclude a grant. By the same token the danger could arise from a person’s behaviour, and not just the condition or lack of facilities in the dwelling (R(B)v Calderdale MBC, High Court stage).
Some local authorities effectively stated in the past that they would never approve applications for works to the garden, either to allow access or to make the garden safe. However, logically, such policies were unlikely to be lawful if applied in every case. This is because dwelling is defined in s.101of the1996 Act to include garden; and the mandatory purpose relating to safety is stated to apply to the dwelling. It would seem to follow that the barring of all such works was to prevent the housing authority coming to a proper decision on the individual facts of the case, and to be a fettering of its discretion (see 5.2.1).
In any case, from May 2008, amending regulations make clear that gardens fall legally within mandatory grant in terms both of ‘making access to a garden safe for a disabled occupant’, and also of ‘facilitating access to and from a garden by a disabled occupant’ (SI 2008/1189).
16.5.4 SLEEPING ROOM
Central government guidance states that provision of a room usable for sleeping should only be undertaken if the adaptation of an existing room in the dwelling (upstairs or downstairs) or the access to that room would be unsuitable in the particular circumstances. Where the disabled occupant shares a bedroom, grant could be given to provide a room of sufficient size, in order that normal sleeping arrangements be maintained (ODPM 2006, annex B, para 21).
16.5.5 FAMILY ROOM
The legislation refers to facilitating access to a room used or usable as the principal family room. Guidance states that in considering applications for grant toward such works, the presumption should be that the occupant have reasonable access to the main habitable rooms, including the living room.
Thus, when a local authority approved a shower and toilet adaptation downstairs for a seriously ill and disabled woman, but did not accept that a family room should be retained, the ombudsman found maladministration. The room to be sacrificed was the only one where the family could sit together; the hoist, hospital-type bed and other medical treatment she needed meant that there was no space to use the front room (Leeds CC 2007).
Guidance points out that, compared to the previous legislation containing DFGs (Local Government and Housing Act 1989), the 1996 Act separated the provisions relating to lavatory and washing, bathing and showering facilities. This was to make clear that ‘a disabled person should have access to a wash-hand basin, a WC and a shower or bath (or if more appropriate, both a shower and a bath)’. Therefore DFG should be given ‘to provide a disabled person with each of these facilities’ and to facilitate their use (ODPM 2006, annex B, para 22).
16.5.7 FOOD, PREPARATION AND COOKING
Guidance states that eligible works include the rearrangement or enlargement of a kitchen to ease manoeuvrability of a wheelchair and specially modified or designed storage units, gas, electricity and plumbing installations.
However, it also states that, if most of the cooking and preparation of meals is carried out by somebody else, it would not normally be appropriate to carry out full adaptations to the kitchen. Nevertheless, certain adaptations might still be appropriate, to enable the disabled person to do some things, such as prepare light meals or hot drinks (ODPM 2006, annex B, paras 23-24). Similarly, it was maladministration when a local authority proposed adaptations – for a quadriplegic man in his early twenties with leukaemia – which meant that the only family room, the dining room, be given up. This would mean that the family would have to eat in the kitchen. This was despite the fact that a foster child had special needs and behaviour problems which meant he had to sit at a table and was not safe near kitchen appliances (Kirklees MBC 2008).
16.5.8 HEATING, LIGHTING, POWER
Guidance states that people with limited mobility who remain in one room for long periods usually need more warmth than able-bodied people. If there is no heating system or where the existing heating arrangements are unsuitable to meet his needs, a heating system may be provided. However, the works should not involve adaptation or installation of heating in rooms that are not normally in use by the disabled person. Installation of central heating should only be considered where the disabled person’s well-being and mobility would otherwise be adversely affected. As far as operating heating, lighting and power, power points could be relocated, and suitably adapted controls provided (ODPM 2006, annex B, paras 25-26).
Local authorities should beware of adopting restrictive approaches, as highlighted in a court case:
Policy on central heating too narrow. In a dispute about a person’s needs for central heating, the local authority conceded that its existing policy was unlawfully rigid. It had stipulated that the applicant must (a) be receiving home kidney dialysis and the treatment room be inadequately heated; (b) have a medical condition that made a constant temperature, 24 hours a day, necessary; or (c) have been assessed by social services as requiring extended bedroom/bathroom facilities that required heating (R v Birmingham CC, ex p Taj Mohammed).
The local ombudsman has criticised too limited an approach:
DFGs and assessment for central heating: restrictive approach. The social services occupational therapy service considered that it could only provide assessments for heating if a disabled occupant’s need arose from a severe functional loss or if there was a risk of injury: that is, risk of burning because of the dysfunction, or inability to control the existing heating where the person lived alone (or was frequently left alone for four hours or more). The occupational therapy service did not consider that it should assess when poor housing conditions (e.g. damp and cold) affected people with a medical condition. The local ombudsman concluded that the council did ‘have a duty to consider a request from one of its tenants for installation of central heating on medical grounds and to reach a decision’.
After consulting with the Department of Environment, Transport and the Regions, he concluded that the criteria used by the occupational therapy service for assessing heating requests amounted to maladministration because they ‘placed a narrow construction on legislation and guidance about the circumstances in which grants might be awarded for heating improvements. I can understand the difficulty for the occupational therapy service; its concern is with functional loss. But if that service is not able to advise on applicants with medical need, the Council should have some other mechanism which can’ (Hackney LBC 1997a).
16.5.9 DISABLED OCCUPANT
For the purpose of DFG, a person is disabled if (a) his sight, hearing or speech is substantially impaired; (b) he has a mental disorder or impairment of any kind; or (c) he is physically substantially disabled by illness, injury impairment since birth or otherwise. A person is also to be taken to be disabled if he or she is registered under s.29 of the National Assistance Act 1948 (see 11.1.3 above), or is a person for whom welfare arrangements have been made under that Act or in the opinion of the social services authority might be made under it (HGCRA 1996, s.100).
16.5.10 DFG FOR ONLY OR MAIN DWELLING
Unlike for social services or the NHS (see Chapter 15), the residence qualification for DFGs is given in terms of dwelling rather than area of residence. The dwelling must be the person’s only or main residence, either as owner (s.21) or occupier of a houseboat or caravan (HGCRA 1996, s.22A). It is improbable, but not impossible, that the courts would hold that a person could have more than one only or main residence. This would normally rule out the provision of disabled facilities grants for two dwellings (e.g. in the case of shared care).
This residence condition is to be contrasted with that in s.2 of the Chronically Sick and Disabled Persons Act 1970, which also covers home adaptations. The 1970 Act refers to ordinary residence in the area of the authority, and not to the only or main dwelling. Thus, duties under the 1970 Act could in principle apply to more than one dwelling, if the need for this was made out. Therefore, in the case of shared care, home adaptations might be possible (where the needs call for it) in two dwellings via both a disabled facilities grant under the 1996 Act and assistance under s.2 of the 1970 Act. This assumes that a duty on social services to fund such a second adaptation could be made out in terms of assessed, eligible needs (see 16.9 and 184.108.40.206).
220.127.116.11 Owner’s application for DFG
A certificate is required that the applicant has or proposes to acquire a qualifying owner’s interest, and that the disabled occupant will live in the dwelling or flat as his only or main residence throughout the grant condition period, or for such shorter period as his or her health and other relevant circumstances permit (s.21). The grant condition period is ten years. In the case of an applicant who proposes to acquire a qualifying owner’s interest, the application must not be approved until he or she has done so (HGCRA 1996, s.24). Repayment is not required in case of breach of the time condition.
18.104.22.168 Tenant’s application for DFG
A certificate is required that the applicant intends that he or she (if the disabled occupant) or the disabled occupant will live in the dwelling or flat as his or her only or main residence throughout the grant condition period, or for such shorter period as his or her health and other relevant circumstances permit. The grant condition period is five years. Unless it is unreasonable in the circumstances, a tenant’s certificate must be accompanied by an owner’s certificate (HGCRA 1996, s.22). Repayment is not required in case of breach of the time condition.
One drawback identified by the local ombudsman involved the case of a man who had to accept the offer of a council tenancy before he was eligible for a disabled facilities grant. However, the house would not be habitable until the works were complete. This meant that he had to pay for two dwellings for an indeterminate period (Birmingham CC 2002). This situation arose because although a prospective (rather than actual) owner can apply for a DFG, it appeared that only an actual tenant, as opposed to a prospective tenant, could apply (HGCRA 1996, s.19). However, guidance issued subsequently by central government states that the offer and acceptance of a tenancy in principle, subject to the completion of adaptations, should be treated as a residence qualification for the purpose of DFG (ODPM 2006, para 6.6).
22.214.171.124 Caravan and houseboat applications for DFG
An ‘occupier’s certificate’ must certify that the applicant intends that he or she (if he or she is the disabled occupant) or the disabled occupant will live in the qualifying houseboat or caravan as his or her only or main residence throughout the grant condition period (five years) or such shorter period as his or her health or other relevant circumstances permit. Repayment is not required in case of breach of the time condition.
Unless it is unreasonable in the circumstances to require such a certificate, the local authority cannot consider an application unless a consent certificate is received from a person who is entitled to possession of the premises at which the houseboat is moored or the land on which the caravan is stationed – or who is entitled to dispose of (sell) the houseboat or park home (s.22A).
Qualifying park home was restrictively defined in the HGCRA 1996 (s.58) so as to exclude, for example, disabled people living on gypsy sites, as well as various others. An amendment contained in the Housing Act 2004 changed the reference from qualifying park home simply to caravan, as defined in Part 1 of the Caravan Sites and Control of Development Act 1960 – and thus widened its application.
16.5.11 DFG MUST BE NECESSARY AND APPROPRIATE
The works must be necessary and appropriate. This is a decision for the housing authority to take, but if the housing authority is not itself also a social services authority, then it is under an obligation to consult the latter about this issue (s.24). Social services and housing functions might come under one (e.g. in a unitary or metropolitan local authority) or more than one (e.g. county council and district council) roof.
Where the authority is unitary, covering both housing and social services functions, it would nevertheless be assumed that housing would call on social services expertise. The reason, why the Act states that the authorities must be separate for consultation to take place, is because when the legislation was drafted and under discussion, it was thought that logically an authority could not consult itself. Thus, previous guidance (now superseded) made clear that, in the case of unitary authorities, the housing department should still consult the social services department (DoE 17/96, annex I, para 37).
The dangers of losing control over recommendations about necessity and appropriateness were illustrated in the following local ombudsman investigation:
Loss of control of assessment and recommendation for a DFG. Following treatment for cancer, a woman living alone had difficulties in managing at home. Supported by Macmillan nurses to some extent, she needed more help and wished to have an additional room in which a carer could stay overnight.
The county council social services department purportedly assessed her and made a recommendation to the district council that such an adaptation/extension was necessary and appropriate, and so qualified for a disabled facilities grant. The district council refused to provide one, explaining that the proposed adaptation did not come under the mandatory category of grant, but only under the discretionary; and the council had a policy of not awarding discretionary grants.
Relying on guidance from central government, which stated that in such circumstances (i.e. rejection by the district council of a social services recommendation) the social services authority had a continuing duty to meet the person’s needs, the woman asked the social services authority for help. In the course of refusing,the authority disowned its previous recommendation to the district council.
It transpired that, at the relevant time, the occupational therapy assistant originally involved had no substantial support or supervision from a qualified occupational therapist; and the possibility of using NHS therapists had been rejected on grounds of cost. As a consequence, and unknown at the time to the director of social services,the original assessment had been delegated to another organisation altogether (a home improvement agency) – and the recommendation, made without the use of qualified staff (e.g. therapists), had been forwarded as the council’s own and without question by the social services department to the district council.
Amongst other findings, the ombudsman found maladministration insofar as social services had throughout failed to assess the woman’s needs properly (Dyfed CC 1996).
Some councils might avoid even getting to the stage of properly considering an application for a DFG and whether works might be necessary and appropriate. This will be maladministration for the local ombudsman: