The Ombudsman's final decision:
Summary: The Council delayed unreasonably in dealing with a review of suitability of accommodation and in identifying a suitable property. The complainants lived in unsuitable accommodation for seven months longer than necessary. The Council has agreed to pay them £1,400 to recognise this injustice. This is a satisfactory remedy.
- The complainants, referred to here as Mr and Mrs X, complained that:
- there was unreasonable delay by the Council in carrying out a review of the suitability of accommodation it offered them; and
- the Council has not allowed them to bid for properties during that time.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
- The law says the Ombudsman cannot normally investigate a complaint when someone could take the matter to court. However, she may decide to investigate if she considers it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c))
- If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))
How I considered this complaint
- As part of my investigation I have:
- discussed the complaint with Mr and Mrs X and considered the information they provided
- considered the information the Council provided in response to my enquiries
- considered relevant law and policy
- discussed the complaint with two managers in the Council’s lettings service
- shared my draft decision on the complaint with the Council and the complainants and considered their responses.
What I found
- An applicant has a right to ask for a review of a council’s decision that an offer of accommodation is suitable. (Housing Act 1996 section 202)
- Councils must write to applicants with the decision on a review within eight weeks of the request. (Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 Regulation 9)
Council’s Housing Allocations Policy
- The Council has a choice-based lettings scheme where applicants bid for properties. Under the Council’s Housing Allocations Policy it may decide to place bids on behalf of homeless households in temporary accommodation. The policy allows the Council to do this “in order to minimise the cost of temporary accommodation (and the amount of time that homeless households spend in temporary accommodation)”. This process is known as ‘auto-bidding’. The Council may also decide to make a ‘direct offer’ of suitable accommodation in these circumstances. (Housing Allocations Policy paragraph 6.12.2)
- The policy says that if an applicant is living in temporary accommodation and is either subject to ‘auto-bidding’ or offered a ‘direct let’, it expects them to accept any suitable offer of accommodation made to them. If the applicant refuses the offer the Council will invite them to reconsider and encourage them to accept the offer. If the applicant still refuses the offer, the Council’s duty to accommodate them as homeless will be discharged. (paragraphs 6.13.5 and 6.13.9)
- The policy says the applicant has a right to ask for a review of the suitability of the offer. “Where the Council decides that the accommodation offered was not suitable (so it was reasonable for the applicant to refuse the offer), the Council will make one further offer of a ‘direct let’ of suitable accommodation”. (paragraphs 6.13.8 and 6.13.9)
- Where the Review Officer decides that the offer of accommodation was not suitable, any penalty that has been imposed (including the discharge of the Council’s homelessness duty) will be cancelled:
- Applicants who have not accepted the offer will be entitled to another offer of accommodation (through choice based lettings, a direct offer or ‘auto-bidding’, as appropriate)
- Applicants who have accepted the offer and taken on the tenancy of that accommodation will be placed in Band A of the Housing Register and will be given an effective date that matches the date that they accepted the tenancy. (paragraph 13.3.4)
- Mr and Mrs X have three children. The oldest child has autistic spectrum disorder, attention deficit hyperactivity disorder and moderate learning difficulties, and displays behaviour problems. The Council accepted the family as homeless in 2004 and placed them in temporary accommodation. Mr and Mrs X are on the housing register, eligible for a three-bedroom property up to the first floor.
- They bid for properties under the Council’s choice-based lettings scheme, without success. In December 2010 the Council placed them on ‘auto-bidding’.
Events of the complaint
- In December 2013 the Council made Mr and Mrs X a permanent offer of a three-bedroom property, Property 1, through the auto-bidding system. They viewed the property but did not consider it suitable to meet the needs of their disabled daughter as it did not have a garden and did not have access to parking nearby. With the help of a solicitor Mr and Mrs X asked for a review of the suitability of the accommodation. In the meantime they accepted the offer and moved into Property 1.
- The Council received the request for review on 18 December 2013. It passed the request to Housing Reviews Limited, the organisation which carries out the reviews on its behalf. It obtained further information from the solicitor, including medical information about the complainants’ daughter’s condition. After assessing all the information, the independent reviewer found that the offer of Property 1 was unsuitable because of the lack of garden and parking facilities. The Council wrote to Mr and Mrs X on 13 June 2014 confirming the decision. It said the Council would make them another offer of accommodation which should have a garden and parking close by. It warned that “given the housing shortage this may take some time”.
- The Council has provided a chronology showing how it dealt with the request for review. It said that after writing to the complainants’ solicitors to notify them of the procedure, it passed the review information to Housing Reviews Limited at the end of January 2014. The organisation considered the information and decided to seek further medical information. It wrote to Mrs X in mid-February 2014 asking for her authorisation to make medical enquiries. It received the signed authorisation on 11 March 2014 and wrote to the GP. Although the GP responded promptly with some of the information asked for, the surgery did not send the medical records until 23 April 2014.
- The medical assessment was carried out and the report passed to Housing Reviews Limited on 13 May 2014. The review was completed a month later.
- The Council wrote to Mr and Mrs X with another offer of permanent accommodation, Property 2, on 9 October 2014. They viewed the property but did not consider it suitable. They asked for a review of the suitability of the offer shortly afterwards. In January 2015 the Council decided the second offer was unsuitable. This was because, although the property had a garden and parking facilities nearby, the single bedroom was too small for the oldest child. It did not meet statutory room size standards.
- The Council looked for a suitable property to offer the family as a direct let. On 23 January 2015 the Council offered them a property which they accepted.
- Mr and Mrs X complained to the Ombudsman at the point when they had asked for a review of the suitability of Property 2 and were waiting for the Council’s decision. They complained that the Council had not allowed them to bid for properties and took too long to respond to their request for review of the suitability of Property 1. After they made their complaint they also found that the Council offered them a second unsuitable property. They said there had been several properties advertised under the choice-based lettings scheme during this period of delay, which would have been suitable for their family. So they allege they missed out on suitable properties because of fault by the Council.
Analysis – was there fault by the Council causing injustice?
- The Council took six months to consider the complainant’s first request for review and issue a decision. This is four months longer than the law requires. The Council has explained the reason for some of the delay. There was some delay by the complainants in returning the signed consent to seek medical information, and some delay by the GP in providing all the information asked for. However from the evidence provided I consider that there were two periods of avoidable delay by the Council and those acting on its behalf. First it took the Council about a month to pass on the review request to Housing Reviews Limited. Second it took around seven weeks for the medical assessors to carry out the assessment, pass the result to the Council and for the Council to make its decision. Overall I consider that the decision could reasonably have been made two months earlier.
- While the Council was dealing with the review Mr and Mrs X were prevented from bidding under the choice-based lettings scheme. This is in line with the Council’s Housing Allocations Policy. Once the Council has made an offer it considers suitable I would not expect it to allow homeless applicants to bid for further properties. This is because if the review was unsuccessful, the Council would be entitled to treat the applicant as having refused a suitable offer. It would then decide it had discharged its duty to offer accommodation. It would undermine the Council’s decision if an applicant had successfully bid for a property in the meantime.
- The policy also says that if a review is successful the Council will make one further offer of suitable accommodation as a direct let. The officers I spoke to explained that following a successful review the Council places the applicant in Band A to give them added priority on the basis that they are living in unsuitable accommodation. It will then make a direct offer to enable them to move more quickly. The policy allows for this situation.
- However there is nothing in the policy which specifically prohibits an applicant from continuing to bid while waiting for a direct offer after a successful review. The Council has explained that the system it uses does not allow for this to happen. Once an applicant has accepted an offer, even if they have asked for a suitability review, the bidding system closes as the property is classed as let. The Council says it can make its own offer outside of the system as a direct let.
- The officers also explained that properties are allocated for direct offers when they become void and available for letting. They are not advertised on the choice-based lettings scheme. Properties are not removed from the advertised list to be offered as direct lets. They said properties become available continuously.
- If the purpose of direct offers is to ensure speedy allocation of properties to applicants with high priority, and if properties become available for direct let frequently, the Council has not explained why it took three months to make a further offer of Property 2 following the successful review. It has confirmed that it has no reasonable explanation for the delay.
- Property 2 was found to be unsuitable on review. The officers acknowledged that the Council should not have treated this property as suitable as it should have checked the room size before making the offer. This contributed a further three months to the delay in offering suitable accommodation.
- I find that the Council was at fault in delaying dealing with the first review, delaying identifying another property to offer, and in offering Property 2 when it should have realised it was not suitable.
- Mr and Mrs X complain that because of the delays and the decision not to allow them to continue to bid for properties, they have missed out on suitable accommodation.
- In my view, if the delays I have identified had not occurred, the complainants could reasonably have expected to receive a suitable offer from June 2014 onwards. The Council has provided details of 3-bedroom properties let during the period when it was dealing with their application and reviews. Several of those which became available for let in June 2014 would have been suitable for Mr and Mrs X and their family based on the Council’s criteria. They received a suitable offer in January 2015. I therefore find that the complainants were living in unsuitable accommodation for seven months longer than necessary.
- I am still not satisfied with the Council’s explanation about why applicants are prevented from bidding after a successful review. In my view the explanation it has provided relates to the period when a review is being considered, rather than once it is complete. It is not clear why an applicant should continue to be treated as having accepted an offer after that offer has been found to be unsuitable. However there is no need for me to pursue the matter further as part of this complaint. There is sufficient evidence that the complainants suffered an injustice through the delays identified to warrant recommending a remedy for them. Pursuing this part of the complaint further will not add anything for them.
- To remedy the injustice to the complainants I recommended that the Council make a payment to them to recognise the extra time spent in unsuitable accommodation. The Council agreed to pay £200 per month for seven months, totalling £1,400.
- I am satisfied with the action the Council has agreed to take to remedy the injustice to the complainants. I have therefore completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman