Summary: Miss F complained the Council’s decision regarding her housing allocation priority was wrong and it took too long to review this decision when she appealed. We found delay which caused time and trouble to Miss F. The Council has agreed to apologise for this. There was no fault in the Council’s decision that Miss F is not statutorily overcrowded or in its decision that she does not require a move on medical grounds.

The complaint

1. Miss F complains the Council’s decision regarding her housing allocation priority was wrong and it took too long to review this decision when she appealed. As a result, she and her family have had to live in an overcrowded property, causing distress.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I spoke to Miss F about her complaint and considered the information she sent and the Council’s response to my enquiries.
6. Miss F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

The Council’s housing allocations scheme

7. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
8. An allocations scheme must give reasonable preference to certain applicants, including:
• people in insanitary, overcrowded or unsatisfactory housing; and
• people who need to move on medical or welfare grounds.

(Housing Act 1996, section 166A(3))

9. The Council’s allocations policy sets bands for all eligible and qualifying applicants. It assesses an applicant’s circumstances and awards them a priority needs banding. Those with the highest priority are awarded Band 1. This includes applicants who are statutorily overcrowded as defined by Part X of the Housing Act 1985, and have not caused this statutory overcrowding by a deliberate act.
10. Band 3 includes those who are overcrowded but not statutorily overcrowded as defined by Part X of the 1985 Housing Act.
11. Within each band, applicants are prioritised first by reference to a priority star system. This provides for priority stars which includes for people occupying unsanitary or statutory overcrowded housing (as defined by Part X of the Housing Act 1985) or otherwise living in unsatisfactory housing conditions in accordance with hazards identified through the Housing Health Safety Rating Scheme.
12. The Ombudsman may not find fault with a council’s decision about a housing applicant’s priority if it has carried this out in line with its published allocations scheme.

Statutory overcrowding

13. There are two legal definitions of statutory overcrowding - the room and the space standards.
14. The room standard is based on the number and gender of people who must sleep in one room. The room standard is contravened in a situation where two people of the opposite sex must sleep in the same room, unless they are:
• cohabiting or married couples, who can live in the same room without causing overcrowding; and
• children under the age of ten, who are completely ignored in the calculation.
15. All living rooms and bedrooms are included in the calculation (this could include a large kitchen). The standard does not limit the number of people of the same sex who can live in the same room. Two children aged under 16 of the same sex are generally expected to share a bedroom.
16. The space standard is based on the maximum number of people who may sleep in a dwelling of a particular size. The permitted number of people depends on the size of the room, the number of living rooms and bedrooms in the dwelling, and the age of the occupants. Children who are under 10 years of age but more than one year old count as half a person.

Medical assessments

17. The Council will consider applications for those who need to move on medical or welfare grounds where their health is being affected by their current property. The Council will refer such cases to its independent medical adviser for an assessment.
18. The applicant can provide their own medical evidence if appropriate along with a medical/welfare assessment form, which will be sent to the independent advisor. Applicants do not have to submit any medical evidence in support of their application. Where required, the independent advisor will request the necessary information from the relevant medical professional.
19. If the independent advisor advises the Council that reasonable preference should be awarded then it will award either:
1. Severe medical award where it can be demonstrated that, due to an illness or disability, it is unacceptable for the applicant to remain in their current dwelling, or
2. Moderate medical award where it can be demonstrated that due to an illness or disability the applicant finds living in their current dwelling difficult and it is clear that remaining in that dwelling will contribute to deterioration in their health. Or it would be beneficial for the applicant to move to alternative accommodation but, at present, the applicant can manage in their present dwelling, or
3. Where appropriate, the medical advisor will also recommend the type of property most appropriate to the medical needs.

Reviews of decisions

20. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority. Statutory guidance on the allocation of accommodation says:
• review procedures should be clear and fair with timescales for each stage of the process
• there should be a timescale for requesting a review - 21 days is suggested as reasonable;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker;
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.
21. The Council’s policy says it will carry out a review and inform the applicant of its decision in writing within 28 days of the review request being made.

What happened

22. Miss F is a Council tenant who lives in a two-bedroom flat with her partner and three children. In February 2023 her two eldest children were over ten years old but under 16. She was registered in Band 3 for overcrowding and was bidding on three-bedroom properties.
23. In February 2023 Miss F approached her MP who contacted the Council on her behalf. He asked the Council to assess the family for statutory overcrowding when her youngest son turned 10 that spring.
24. The Council replied to the MP that an assessment to determine if there was statutory overcrowding would be done. But it was unlikely they would qualify for statutory overcrowding as the living room was counted as sleeping space and they had two bedrooms. The family would not be entitled to four bedrooms until their eldest son turned 16, as the two boys could share a room.
25. The Council visited Miss F’s home on 13 March and measured the rooms. This found that neither the room nor space standards were contravened. The Council was satisfied that the flat could accommodate 5.5 people and as they were a family of five, they were not statutorily overcrowded.
26. The Council sent this decision to Miss F on 17 March. She was concerned about it as they used the living room as family space, so her daughter was sharing the parents’ bedroom. Miss F considered this inappropriate and asked the Council to review its decision. This review should have been completed by 14 April in line with the Council’s policy.
27. On 22 May, the Council asked the independent medical advisor to assess information Miss F had sent.
28. On 2 June, the Council told Miss F it would review the statutory overcrowding decision as soon as possible. There is a letter with the outcome of the review dated 12 June 2023, but there is no evidence it was sent to Miss F.
29. The outcome of the medical assessment was sent to Miss F on 26 June. There was no medical requirement for a move.
30. Miss F complained to the Council on 17 July. She said she had not yet received a response to her request for a review made on 17 March.
31. The Council responded on 8 August. It apologised for the delay in sending Miss F the outcome of the review.
32. Miss F asked the Council to escalate her complaint to the next stage as she remained concerned that the family was overcrowded.
33. The Council sent Miss F the outcome of its overcrowding review on 18 September. This found she was not statutorily overcrowded. It did not uphold her complaint.

My findings

34. There has been delay by the Council in responding to Miss F’s request for a review of its decision that she was not statutorily overcrowded. The review should have been completed by 14 April. I have seen evidence it was completed by 12 June, but on balance I find this letter was not sent to Miss F until 18 September. There was therefore fault.
35. This has caused some time and trouble to Miss F, but I do not consider there is significant injustice. Miss F was already aware that the Council had found her not to be statutorily overcrowded and this was confirmed by the review. So, Miss F has not missed out on any re-banding by the delay.
36. I have reviewed the Council’s decision about overcrowding. There is no fault in the way this was done, so I cannot challenge the Council’s decision she is not statutorily overcrowded. The Council has correctly placed her in Band 3 for household who are overcrowded but not statutorily overcrowded.
37. Miss F also submitted medical information about her family, which was considered by the independent medical advisor, I have seen no evidence of fault in the way that was considered, so I cannot challenge the decision that there is no medical need for the family to move or to have a medical priority.

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Agreed action

38. Within a month of my final decision, the Council should apologise to Miss F for the delay in responding to her request for a review.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman