Disabled Facilities Grants and young people in England

Local authorities have statutory obligations to pay grants to facilitate access to homes by disabled occupants as well as to make them safe for the disabled person and those they live with.  In relation to disabled young people in England,[1] the obligations arise from several provisions, including the Chronically Sick and Disabled Persons Act (CSDPA) 1970, the Children Act (CA) 1989, the Housing Grant, Construction and Regeneration Act 1996 (HGCRA) and the Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 (RRO).

The interplay between these provisions is at times complex.[2] This paper highlights the confused nature of the current law and local authority practice relating to grants in excess of £30,000.   It argues that in many cases parents and carers of disabled children are subject to irrational and unlawful policy decisions.

 

The legislative and policy context

Support for adaptations under the HGCRA 1996

The right to a DFG for housing adaptations derives from the HGCRA 1996 and the maximum mandatory grant at present in England amounts to £30,000.[3]

It appears that there are about 43,095 DFGs paid each year in England[4] of which about 7% are paid for people under 21.[5] Mackintosh and Leather note that although the average grant is £7,256[6] the current grant ceiling (£30,000) ‘is often not adequate for children’s cases as sometimes the only solution is to provide a purpose built extension which can cost anywhere up to £70,000’ [7].

Where a DFG is unavailable,[8] unsuitable[9] or the cost of the necessary adaptation exceeds the £30,000 mandatory amount, various statutory provisions exist which either authorise or require local authorities to pay for such works (or additional works).  Most notable of these is the social care duty in the CSDPA 1970 section 2 and the CA 1989 section 17.  In addition a discretionary housing authority power exists in the 2002 RRO.

 

Support for adaptations under the CSDPA 1970 and CA 1989

For the purposes of this paper the duties under the CSDPA 1970 section 17 and the CA 1989 are dealt with as one combined duty: the duty under section 17 of the 1989 Act.[10]  In the analysis that follows references to the duty under the 1989 Act will (unless otherwise made clear) be taken as including the duty under the 1970 Act.

CA 1989 section 17(1) places a general duty on social services authorities to provide a range of services to safeguard and promote the welfare of children in need and it is well established that this duty includes support for adaptations to a home to accommodate the needs of a disabled child.  Section 2(6) of the 1970 Act is explicit in this respect, covering ‘the provision of assistance for the child in arranging for the carrying out of any works of adaptation in the child’s home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience for the child’.  This provision underlines Parliament’s view that home adaptations can be a core social care need.

In relation to the twin obligations (under the 1996 and 1989 Acts) the local government ombudsman has held that it is maladministration for a council to fail to appreciate that it has a duty under the social services legislation to provide adaptations, separate to that under the housing legislation.[11]

 

Support for adaptations under the RRO 2002

Article 3 of the RRO empowers housing authorities to provide assistance to individuals where (among other things) the need is ‘to adapt or improve living accommodation (whether by alteration, conversion or enlargement, by the installation of anything or injection of any substance, or otherwise)’ (Article 3(1)(b)).  It will be noted that this power is not limited to disabled people.

 

Means testing

Means testing under the HGCRA 1996

Where a DFG is required for a disabled young person under 19 years of age the HGCRA 1996 exempts this from the means test (that applies to people over 19).

 

Means testing under the CA 1989

Section 29 of the 1989 Act empowers (but does not require) local authorities to charge for support provided under section 17 of that Act.  It appears that most English local authorities do not charge for support of this kind provided to disabled children.  If an authority decides to charge, it must do so as a result of a formally adopted policy (upon which there has been consultation,[12] including a Public Sector Equality Duty (PSED) assessment[13]).  Even in such cases section 29(3) of the 1989 Act stipulates that authorities cannot charge people who are in receipt of universal credit, income support or of any element of child tax credit (other than the family element) of working tax credit of an income-based jobseeker’s allowance or of an income-related employment and support allowance.

 

Means testing under the under the RRO

The RRO Article 3(4) gives housing authorities a power to provide assistance unconditionally or subject to conditions including ‘conditions as to the repayment of the assistance or of its value (in whole or in part), or the making of a contribution towards the assisted work’ but it stipulates that ‘before imposing any such condition, or taking steps to enforce it, a local housing authority shall have regard to the ability of the person concerned to make that repayment or contribution’.  Article 3(7) provides that where the housing authority decides to place a charge on a home to secure repayment of its support, that it may ‘at any time reduce the priority of the charge or secure its removal’.

It appears that a number of local authorities in England when providing support under the RRO impose a standard charge on the property, which means that if it is sold within 10 years of the grant, it must be repaid.[14]

Before a housing authority imposes any charge under the RRO it must have adopted a lawful, publicly available policy detailing how the charging scheme is to operate (Article 4).  Given that the policy may well have an adverse impact on people with protected characteristics under the Equality Act 2010, it follows that such a policy must also have been the subject of a full PSED assessment.

 

The Public Sector Equality Duty (PSED)[15]

Section 149 of the Equality Act 2010 places a duty on councils to have due regard to (among other things) the need to eliminate discrimination and to advance equality of opportunity ‘between persons who share a relevant protected characteristic[16] and persons who do not share it’.

When the PSED duty is engaged, public bodies must genuinely and conscientiously apply their minds to the promotion of equality: to the elimination discrimination, the advancement of equality of opportunity and the fostering of good relations.  The courts[17] have held that this is a substantial duty and must (among other things) be considered in detail (and the consideration recorded in writing) before the policy is adopted and before any relevant decision is taken.

The obligation is to ‘have regard’ to the duty when formulating a policy or making a decision which means that it is a duty of ‘substance’ that must be exercised ‘with rigour and with an open mind’: it is ‘not a question of “ticking boxes”’.[18] So where a decision may have an adverse impact on advancing equality, the public body must consider what it can feasibly do to mitigate this negative impact.[19]

 

DFG and disabled children research

2016 research in England found that over 70% of DFGs were paid to people aged over 60[20] and that overall the average grant was slightly more than £7,250.[21]  It noted however that only 7% of grants were paid for persons under the age of 21 and that not infrequently in these cases the maximum mandatory grant ceiling was inadequate – as for children ‘sometimes the only solution is to provide a purpose built extension which can cost anywhere up to £70,000’.[22]

The research, when noting that many home adaptations required by young people were materially more expensive than for older people (and their cost not infrequently exceeding the maximum mandatory award), observed that this created a significant problem:[23]

Top-up funding from social care services has become increasingly hard to obtain and, although interest free loans are available in some cases, finding additional funding can often lead to long delays. Clarification is required about the responsibilities of the social care authority as this seems to be inconsistent across the country.

A DFG summit held by Foundations in 2015 called for the upper limit of the DFG to be raised as the long term cost savings to health and social care of keeping a family together and avoiding residential care are very high.[24] This has also been called for by disability organisations for people of all ages who need more extensive adaptations.[25]

 

A small scale 2017 study[26] of the economic and well-being impact of adaptations to family homes to accommodate the needs of young disabled people suggested that the principal cost impacts were that the adaptations had avoided the need for the young people to be ‘accommodated’ ie to become ‘Looked After Children’.  The study suggested that investing in adaptations produced dramatic cost savings for local authorities even if one disregarded other cost impacts or well-being impacts for the young people and their families (a £5 saving for every £1 invested[27]).

 

Discussion

Choosing between the 1996 Act, the 1989 Act and the RRO

The question posed by this paper concerns the legality of local authorities charging families for home adaptations to accommodate the needs of disabled young people.

This paper has outlined three different mechanisms that enable authorities to fund necessary adaptations to the homes of disabled young people.  Two of these mechanisms place duties on the authority and one of these has a prohibition on charging.  Of the two that permit charging, the CA 1989 contains significant restrictions on the power to charge and the discretion under the RRO  is itself subject to not insignificant procedural restrictions.

The choice can be posed in a fairly direct way.  Why should not a public body always use the RRO mechanism (and so charge families) rather than consider requests for support under the 1996 or 1989 Acts?  The answer would appear to be simple: these two Acts create duties and the RRO does not.  If that is the case then the RRO process can only act as a safety net – ie it is only to be considered when the duties under the 1996 or 1989 Acts are not triggered.

In practice the 1996 is seen as the first port of call.[28]  However if for any reason a grant is not available (or would be too long delayed) then it must follow that the 1989 Act must be the next provision to be considered.

 

The extent of the obligation under the 1989 Act

As the above statistics demonstrate, the cost of many adaptations required to the homes of disabled young people exceed the maximum mandatory grant available under the 1996 Act.

Since the processing of an application under the 1996 Act means that the young person (and their carers) will have come to the notice of the local authority, a duty to assess will have been triggered under the 1989 Act.[29]

Although the process by which a council decides whether adaptations should be funded under the 1989 Act is different to that under the 1996 Act, it is difficult to see how in practice the outcome can differ.  A decision by an Occupational Therapist that the works are ‘necessary and appropriate’ for the purposes of the 1996 Act[30] will almost certainly mean that the need for adaptations is eligible under the 1989 Act.

Where a local authority decides that the young person’s needs do not satisfy their eligibility criteria under the 1898 Act it will have to provide evidence based, cogent and rational reasons for coming to this decision.  One such reason cannot be that the necessary support could be provided under the RRO.  This would be impermissible for many reasons – not least that it would allow a ‘power’ to trump a ‘duty’ and allow a local authority to avoid the statutory charging restrictions placed upon it by the 1989 Act.

 

The restrictions on charging on the RRO

It is only after an authority has provided cogent reasons for deciding that the young person is not eligible for support under the 1989 Act that it could then move to consider whether discretionary support should be provided under the RRO.

As noted above, where an authority is considering the use of its power under the RRO it can only impose a charge if it has adopted a lawful policy detailing how the charging scheme is to operate and the policy has been the subject of a PSED impact assessment.  Additionally the local authority will have to demonstrate that it has had regard ‘to the ability of the person concerned to make that repayment or contribution’.

As noted above, it appears that some local authorities in England when providing support under the RRO impose a standard charge on the property, which means that if it is sold within 10 years of the grant, it must be repaid.  In formulating a RRO policy a local authority must consider many important equality principles, including:

  • that the proportion of disabled children being brought up in lone-parent households is significantly greater than that for non-disabled children[31] and that the majority of lone parents are mothers;[32]
  • that women with disabled children are less likely than other mothers to be in paid work;[33]
  • that having a charge on a home is likely to have a chilling effect on the ability of a parent to move (for example, in order to take up work or a better job or undertake education or training);
  • that having to sell a home to pay a charge will further impoverish such families
  • that 4 in every 10 disabled children in this country live in poverty;[34]
  • that the home adaptation needs of disabled children are generally more expensive than those of older people (and so there is a need to treat this difference differently);[35]
  • that home adaptations can be vital to avoid the breakdown of families and to address the well-being, not only of the young person and his/her parents but also of the young person’s siblings (engaging obligations under both the UN Convention on the Rights of People with Disabilities and the UN Convention on the Rights of the Child);
  • that research suggests that home adaptations to accommodate the needs of young disabled people are likely to lead to significant cost savings to the local authority.

 

Conclusion

There is, as noted in this paper, evidence that local authorities are defaulting to RRO powers (and charging) when the cost of a disabled young person’s home adaptation exceed £30,000.   This paper argues that the use of powers in the RRO should be the last step in such cases, not the first.

It is unclear why local authorities are using this incorrect process.  It may be, in part, that adaptations are seen as ‘housing’ budget responsibility – but as the above discussion makes clear – they are no less a social services responsibility.[36]  It may be a response to the consequences of austerity economics that authorities are experiencing – in essence an attempt to defray some of the cost by charging families.  It may however also be due to the absence of clear and unambiguous guidance in England.  What this paper demonstrates is that guidance on this question is essential: guidance that ensures that parents of disabled children across England are confident that they will not be means tested and a charge placed on their home should they require additional funding for an adaptation to their property.

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[1] For the position in Wales, see A James & L Clements ‘Disabled Facilities Grants in Wales: the legality of charging families for home adaptations to accommodate the needs of disabled young people’ in Rhydian on-line Journal (2018) (2) 5-11.
[2] See for example R (J & L) v. Hillingdon LBC [2017] EWHC 3411 (Admin).
[3] The Disabled Facilities Grants (Maximum Amounts and Additional Purposes) (England) Order 2008 SI 1189 Article 2.
[4] S Mackintosh & P Leather The Disabled Facilities Grant (Foundations 2016) Table 2.
[5] ibid Table 5.
[6] ibid Table 2.
[7] Ibid para 5.20.
[8] The 1996 Act imposes a number of conditions that have to be satisfied before a mandatory DFG award can be made – including for example that the intention is that the disabled person will live in the property for at least 5 years – which was the reason why such a grant was not available in R (J & L) v. Hillingdon LBC [2017] EWHC 3411 (Admin) (due to the house being scheduled for demolition).
[9] For example because the need is urgent and cannot wait for the DFG application process to be completed.
[10] Legally the relationship between these provisions is complex, but it is now settled law, as section 2(4) of the 1970 Act stipulates that a duty under section 2(6) of the 1970 is discharged in exercise of their functions under Part 3 of the 1989 Act.
[11] Complaint no 05/C/13157 against Leeds City Council, 20 November 2007.
[12] R v Coventry City Council ex p Carton (2001) 4 CCLR 41.
[13] See for example Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 and R (Aspinall) v Secretary of State for Work and Pensions [2014] EWHC 4134 (Admin).
[14] S Mackintosh & P Leather The Disabled Facilities Grant (Foundations 2016) para 2.12.
[15] For a more detailed review see Luke Clements Community Care & the Law Legal Action Group 6th edn (Legal Action Group 2017) para 2.59 – 2.63.
[16] By s149(7) the relevant protected characteristics are– age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation.
[17] R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at [84]–[96].
[18] Para 92; and see R (Kaur and Shah) v Ealing LBC [2008] EWHC 2062 (Admin) at paras 24–25; see also R (Boyejo and others) v Barnet LBC and Portsmouth CC [2009] EWHC 3261 (Admin), (2010) 13 CCLR 72.
[19] R (Kaur and Shah) v Ealing LBC [2008] EWHC 2026 (Admin) para 43.
[20] S Mackintosh & P Leather The Disabled Facilities Grant (Foundations 2016) para 5.42.
[21] S Mackintosh & P Leather The Disabled Facilities Grant (Foundations 2016) para 5.14.
[22] Ibid para 5.20.
[23] Ibid.
[24] Foundations and the College of Occupational Therapists  Report on the DFG Summit, (Foundations 2015).
[25] Muscular Dystrophy UK  Breaking point The crisis in accessible housing and adaptations (Muscular Dystrophy UK 2015).
[26] Luke Clements and Sorcha McCormack Disabled Children and the Cost Effectiveness of Home Adaptations & Disabled Facilities Grants (Cerebra 2017) and see also W Wilson Disabled Facilities Grants for Home adaptations House of Commons Library Briefing paper Number 03011, 22 July 2018 para 5.7.
[27] Ibid paras 5.15 – 5.16).
[28] See for example R (Fay) v. Essex County Council [2004] EWHC 879 (Admin) at [28] where this pecking order was approved.
[29] See for example R (AC & SH) v London Borough of Lambeth Council [2017] EWHC 1796 (Admin).
[30] Section 24 HGCRA 1996.
[31]Department for Work and Pensions, Family Resources Survey, 2012/2013.
[32] H Clarke and S McKay, Exploring disability, family formation and break-up: reviewing the evidence, Research Report No 514, Department for Work and Pensions, 2008; C Blackburn et al footnote 38 above.
[33]S McKay and A Atkinson, Disability and caring among families with children, Research Report No 460, Department for Work and Pensions, 2007.
[34] Children’s Society Disabled children living in poverty (2011)
[35] Thlimmenos v. Greece Applic No. 34369/9731 6th April 2000; E.H.R.R. 411.
[36] As the Court noted in R (J & L) v. Hillingdon LBC [2017] EWHC 3411 (Admin) it is a social services function to ‘properly identify the risk and the welfare needs of [disabled young people] to enable it to assess the appropriate way of addressing those needs and risks’ (para 75).