London Borough of Hammersmith & Fulham (17 003 189)

Category : Housing > Allocations

Decision : Upheld

Decision date : 08 Feb 2019

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s failure to include his elderly mother in his application to join the housing register. He says this has affected the well-being of his family as they are overcrowded. The Ombudsman has found the Council to be at fault because it did not consider Mr X’s application properly and in good time. To remedy this the Council has agreed to apologise, reconsider his application, make a time and trouble payment and review its practices.

The complaint

  1. Mr X complains about the Council’s refusal to include his elderly mother on his application to join the housing register, as well as the way the Council has dealt with this matter.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We 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, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  3. If we are satisfied with a council’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

  1. As part of my investigation I have:
  • considered the complaint and documents provided by Mr X;
  • made enquiries of the Council and considered its response;
  • considered the Council’s Housing Allocations Policy; and
  • sent my draft decision to both parties, invited comments on it and considered those comments.

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What I found

  1. 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))
  2. The ‘Allocation of accommodation: guidance for local housing authorities in England’ (2012) is statutory guidance, which says that reviews should be completed wherever practicable within a set deadline. Eight weeks is suggested as a reasonable timescale. The applicant should be notified of any extension to this deadline and the reasons for this.
  3. Under the Council’s allocations policy, applicants are entitled to request a review of a decision within 21 days. Notifications of any decisions must be in writing and should include clear grounds for the decision as well as informing the applicant of their right to request a review.

What happened

  1. In 2016 Mr X shared a two bedroomed privately rented house with his wife, Mrs X, two sons, aged 16 and his elderly mother, Mrs Y. Mrs Y shared a bedroom with her two grandsons.
  2. Mrs Y received a package of care from the Council. She needed support with most aspects of daily living including personal care following a stroke.
  3. Mr X says they are overcrowded. In October 2016, Mr and Mrs X made a joint application, on behalf of the whole family, to join the Council’s housing register. In December 2016, the Council rejected this application because Mr and Mrs X, “do not have an identifiable housing need”.
  4. In its refusal letter the Council explained, “You have requested to include your mother, Mrs Y, on the application. We do not include adult family members to an application unless there are medical reasons as to why that family member is required to live with you”. The Council sent a medical form to be completed if the family felt Mrs Y was required to live with them The Council also said the family may wish to explore the option of sheltered accommodation for Mrs Y.
  5. Mr X requested a review of the Council’s decision to refuse the application on 1 January 2017. He completed the medical form provided. He sent this by Special Delivery but I have not had sight of a delivery receipt.
  6. Mr X sent an email to the Council on 18 April 2017. He asked for an update on his review request. He did not receive a reply.
  7. In May 2017, he complained to the Ombudsman. He was told by the Ombudsman to raise his complaint formally with the Council first. It is not clear whether he did so.
  8. Nothing happened until October 2017 when Mr X contacted the Ombudsman again. The Council told the Ombudsman it had not received any correspondence from Mr X in response to its decision in December 2017. The Council said it would deal with his complaint through stage one of its complaints procedure.
  9. To this end, Mr X lodged a formal complaint with the Council on 6 November 2017.

The Council’s stage one complaint response

  1. The Council replied on 28 November 2017. It said it had “found” Mr X’s email dated 17 April 2017 and the Council accepted it had failed to process it. It therefore upheld his complaint. Mr X was invited to resubmit the review request and further medical form was sent out to him to complete.
  2. Mr X resubmitted the forms and supporting documents on 8 February 2018. He says the documents were sent by Special Delivery. Mr X did not receive a reply. So in April 2018 he complained again to the both the Ombudsman and Council. The Council said it would deal with it under stage 2 of its complaints procedure.

The Council’s stage two response

  1. The Council says it responded on 24 April 2018. Mr X says he did not receive this. The response from the Council is undated.
  2. The Council said the medical forms had been received on 9 February 2018 and had been forwarded to its medical advisor. The doctor advised that sheltered accommodation was the most suitable option for Mrs Y. It said the waiting time for sheltered housing was considerably less that for a three-bedroom house.
  3. The letter said, “please accept our apologies for the lack of response to your enquiries following document submission.” The Council said a complaints officer had tried to contact Mr X by phone to discuss options but had been unsuccessful.
  4. The view of the Council was that, “it is disappointing we were unable to resolve your complaint at the first opportunity and I am sorry it had to be escalated…this gave the opportunity to put things right which I hope you feel has been achieved”.
  5. Mr X complained to the Ombudsman again in July 2018 as he had not received this stage two reply. This response was sent to him in July 2018. Having read this, Mr X said he remained unhappy and so brought his complaint again to the Ombudsman. He did not want his mother moving from her home to live somewhere unfamiliar to be cared for by strangers. The family was living in overcrowded conditions and wanted to be considered for a larger property, not for his mother to move out.

The Council’s response to the Ombudsman

  1. In response to my enquiries about what happened the Council has said it does not hold any documents on file supporting Mr X’s claim to have his mother included within the housing application. It maintains its position that it did not receive the original review request dated 1 Jan 2017. The Council also doubts it could have been made so quickly.
  2. It noted that Mr X’s first formal complaint made on 27 November 2017 was well outside the time allowed for a review. It said that the medical form was sent out in November 2017 and had still not been returned.
  3. The Council said it had no record of Mr X ‘s reminder email dated 18 April 2017.
  4. Nevertheless, the Council put forward a proposed resolution. It agreed to reassess Mr X’s application, with all relevant supporting medical evidence. If successful their application would be backdated. This would mean they would have higher priority, should a suitable three-bedroom property become available.

Analysis

  1. There is a severe shortage of local authority housing, particularly in London, so supply and demand is a relevant consideration in any time frame involved in finding suitable accommodation.
  2. Clearly Mr X and his family are living in difficult conditions in terms of overcrowding. Mr X is disappointed the Council has not done more to help them to move. However, the Ombudsman’s role is to make sure that the Council applied its housing allocation policy properly and fairly. The Council’s response to my enquiries and its case records should demonstrate all decisions made by the Council have been made within reasonable timescales and clearly and promptly communicated to Mr X. This did not happen here.
  3. The Council’s response to my enquiries contains a number of inconsistencies set out below:
      1. It says the Council does not have any documents from Mr X to support his review request or a medical report that would have been requested had such a review been made. However, the stage two response says the matter was referred to the Council’s medical advisor who had suggested sheltered housing. This letter also says, “Our records show you submitted medical documentation to support your application to join the housing register on 9 February 2018”.
      2. The Council says it is willing to reassess the application and if successful it would be backdated to 26 October 2016. Later in the same letter the Council repeats this offer but says it would be backdated to 28 December 2016, the date of notification.
      3. The Council says it “has no record of a reminder letter being sent on 18 April 2017”. This is incorrect. I have seen a copy of his email and the Council said in its stage one complaint response that it had “found” this email. This led to the complaint being upheld.
  4. The problems in this case have been compounded by both parties saying they sent letters that were not received by the other. The Council says it did not receive Mr X’s original review request, his reminder email from April 2017 and his resubmitted review from February 2018. Similarly, Mr X says he did not receive letters from both the Council and the Ombudsman from April 2018, including the stage 2 response. Without either delivery reports or special delivery confirmations it is not possible for me to determine some aspects of what either side says. Because of this I am unable to make findings about some of the delay experienced by Mr X.
  5. Instead I shall focus on what is supported by available evidence. The Council says it did not receive his review request in Jan 2017. Mr X has not been able to produce his delivery receipt. But the Council accepts it did receive his reminder dated April 2017 and accepts it did not deal with this. I have taken this as the date that the Council should have processed his review request. Failure to do so is fault.
  6. The Council accepted this in its stage one and upheld his complaint. Mr X was given a further opportunity to submit medical evidence. He did so on 8 February 2018 and the Council has accepted this was received in its stage two response. Although this fact was later contradicted by the Council’s response to the Ombudsman – see paragraph 25 above).
  7. What happened next is unclear. What I do know is the Council did not respond to Mr X. This meant he had to complain once again to the Council and the Ombudsman. The Council says it sent his stage two response in April 2018 but Mr X says he did not receive this. There is no date on the stage two response which I would expect to see on such an email. I accept it is possible this was not sent although it does not affect my findings either way.
  8. After further involvement from the Ombudsman, Mr X received the Council’s stage two response in July 2018. This letter said the matter had already been referred to the Council’s medical advisor. As part of my investigation I specifically asked the Council to provide a copy of any medical report. This has not been produced. Other than this one sentence in the stage two response there are no other records about this. Neither Mr X nor the Ombudsman has been provided with any explanation about how the conclusion that sheltered housing was the “most suitable option” for Mrs Y was reached by the doctor.
  9. I have seen recent care and support plans for Mrs Y. It is clear she has a high level of care need and while she receives a package of care, Mr X provides a lot of daily care to his mother. She has only lived in this country for just over two years. She does not speak English and suffers with cognitive impairment. Despite this the Council recommended she may wish to move to sheltered accommodation.
  10. Mr X was not notified of this decision, or the reasons for it explained. Nor was he given an opportunity to request a review of this decision. The Council’s own policy says this should have happened. Neither has the Ombudsman been provided with any supporting documentation or explanation for the Council’s decision making about this. This is fault.
  11. Despite this, the Council maintains its position that it does not have the medical forms from Mr X and, in response to his complaint has said it will reconsider his review request. While I welcome the Council’s acceptance of some fault and willingness to reconsider and backdate the application, it is concerning that, even at this late stage the Council has been unable to identify the serious failings in this case or provide any explanation about how the medical advisor reached that view.
  12. I am unable to say whether the review request would have been successful had the medical form been properly considered at the relevant time. This would be a matter of professional judgement for the Council to make, based on the available evidence and the recommendations of its medical advisor. But I am satisfied that the Council had the relevant paperwork from April 2017, so it has taken nearly two years to get to this point. The Council has said the waiting time for a three-bedroomed property is between two and five years. Because of this it is highly unlikely that, had the Council accepted Mrs Y within the housing application in April 2017, that the family would have been rehoused by now. While the delay in this case is fault, this did not create a lost opportunity to Mr X as he would not have been rehoused within this time. However, I do consider the delay caused uncertainty as well as time trouble and distress to Mr X.
  13. At the time of writing this decision statement, Mr X’s two sons are now over 18. Under the Council’s Allocations Policy, if the application were to be made today, they would not be entitled to be considered in their parents’ application, but they were so entitled at the time of the original complaint. It is the role of the Ombudsman, if fault and injustice are found, as is the case here, to put the complainant, as far as possible, back in the position they would have been had the fault not occurred. I am therefore recommending the young men should be included within the application if Mr X so wishes.

Agreed action

  1. To remedy the fault and injustice set out above, the Council has agreed to take the following action:
      1. Reconsider Mr and Mrs X’s housing application. It should either locate his supporting documents or contact Mr X without delay to obtain this information from him. As explained in paragraph 41 above, it should include Mr and Mrs X’s two sons as still being dependent children. If the application is successful it should backdate it to the earlier of the two dates given, namely October 2016.
      2. Pay Mr X £500 acknowledge the time and trouble he has spent trying to have his review considered.
      3. Apologise in writing to Mr X and his family for the faults I have identified.
      4. Reflect on what went wrong in this case and provide the Ombudsman with a written report setting out what lessons have been learned and what steps the Council has taken and/or proposes to take to prevent them from happening again.
  2. All agreed actions should be completed within four weeks from the date of my final decision.

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Final decision

  1. The Council was at fault when it failed to consider Mr X’s housing application properly. It also took too long to deal with his complaint about this. To remedy this, the Council has agreed to apologise, reconsider the application properly, make a time and trouble payment and make improvements to the service.

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Investigator's decision on behalf of the Ombudsman

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