Sandwell Metropolitan Borough Council (18 003 580)

Category : Housing > Allocations

Decision : Not upheld

Decision date : 04 Dec 2018

The Ombudsman's final decision:

Summary: The complainant says the Council failed to properly consider his disability and medical conditions when awarding priority to his housing application. The Council says it considered the information presented and its medical adviser’s advice before deciding priority. The Ombudsman finds the Council considered all relevant information when deciding priority and therefore acted without fault.

The complaint

  1. The complainant, whom I refer to as Mr X, says the Council when responding to his housing application failed to:
    • Properly consider the impact of his current housing on his medical conditions when deciding whether to award medical priority;
    • Seek properly qualified medical advice when considering Mr X’s application and when reviewing its decision;
    • Properly consider the need for Mr X’s family to move from overcrowded conditions to provide room for his children to stay;
    • Act without discriminating against Mr X as a person with protected characteristics under the Equality Act.
  2. Mr X says the Council’s failings have led him and his family to live in overcrowded conditions making his health worse and he wants the Council to help him move to a three-bedroom house in an area of his choice.

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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. If 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. In considering this complaint I have:
    • Contacted Mr X and read the information presented with his complaint;
    • Put enquiries to the Council and reviewed its responses;
    • Researched relevant law, guidance and policy;
    • Shared with Mr X and the Council my draft decision and reflected on any comments received.

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What I found

  1. Under the Housing Act 1996 councils must award ‘reasonable preference’ to certain categories of people.
  2. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants and its procedures for allocating housing. Councils must make all allocations in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
  3. An allocations scheme must give reasonable preference to applicants in the following categories:
    • homeless people;
    • people in insanitary, overcrowded or unsatisfactory housing;
    • people who need to move on medical or welfare grounds;
    • people who need to move to avoid hardship to themselves or others. (Housing Act 1996, section 166A(3))
  4. Councils must notify applicants in writing of the following decisions and give reasons:
    • that the applicant is not eligible for an allocation;
    • that the applicant is not a qualifying person;
    • a decision not to award the applicant reasonable preference because of their unacceptable behaviour.
  5. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
  6. Statutory guidance on allocating 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;
    • 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.
  7. The Ombudsman may not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
  8. The Ombudsman recognises the demand for social housing far outstrips the supply of properties in many areas. He may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.

The Council’s housing allocations policy

  1. The Council’s housing allocations policy awards priority using five priority banding groups with those in Band 1 being given highest priority.
  2. The Council awards Band 1 priority to applications from households who are over-crowded and need two or more further bedrooms using the Department of Work and Pensions Bedroom Standard.
  3. The Council awards Band 2 priority to applications from households where medical priority has been awarded to someone in the household because the current conditions are having a major adverse effect on the medical conditions of that person. This includes people with a physical disability who have been assessed by an Occupational Therapist as needing an adapted property to meet their housing need.
  4. The Council awards Band 3 priority to households who are over-crowded and need one further bedroom.

What happened

  1. Mr X has medical conditions including cancer for which he has received treatment. Mr X says he finds it difficult to access his home, a first floor one bedroom flat due to difficulties in using the stairs. Mr X says what he needs is a three-bedroom home on the ground floor. In Mr X’s view, this would meet his needs and enable him to have his children stay with him on weekends as well as the children of his current family.
  2. When Mr X applied for housing he says the housing officer did not understand the seventy page medical documents he presented in support of that application. Mr X does not believe the Council’s independent medical adviser had the necessary qualifications to consider the impact of his conditions. It is Mr X’s view the Council has discriminated against him contrary to the Equality Act 2010.
  3. On 26 January 2018 Mr X presented a housing application for a move. Mr X said he needed more suitable housing so he could have his children from a previous relationship at weekends. Mr X expressed concerns about accessing his flat and the need for more room. The Council’s application form at Section 5 headed “Circumstances and Needs” asks applicants to tick all the circumstances that apply to them. This includes one which reads “Do you or anyone moving with you have a medical condition which is adversely affected by your current accommodation? (e.g. can no longer manage the stairs)”. Mr X did not tick this box. However, he did tick the box which says: “Are you overcrowded?” because his home is a one bedroom property without room for his children. Mr X also ticked the box saying he would like someone to discuss his support needs with him because he says he is vulnerable because of his conditions.
  4. The Council wrote to Mr X on 7 February 2018 accepting his application. It confirmed the Council had registered Mr X on the housing register from 5 December 2017. The letter says Mr X’s household consisted of a couple plus one child and awarded Band 3 priority. The letter did not set out the applicant’s right to ask for a review of the priority awarded.
  5. However, in response to its decision Mr X asked the Council to consider awarding him Band 2 priority due to his medical needs. On 14 March 2018 Mr X completed and presented a Medical Priority Form to which he attached evidence of his conditions. In completing the form Mr X did not say he had any difficulties in using the steps to his property however, he did say access to his home is difficult because it is on a steep hill which he cannot easily walk up. In response to the question on the form is there anything else that causes him difficulty when accessing his home Mr X wrote “No, just the hill.” The hill access means he does not get out often causing him to feel isolated. On the form Mr X also says the swing seat to access the bath causes him much pain when he uses it so he does not feel the adaptation suitable.
  6. On 5 April 2018, the Council wrote to Mr X saying it had considered the information but the Medical Assessment Panel could not award priority. The Council explained the Panel “…felt there was not enough evidence to suggest that the property is having a detrimental impact on your health. If you are experiencing problems with bathing refer back to aids and adaptations”.
  7. The letter continued by setting out Mr X’s right to ask for a review of the decision within 21 days. Mr X asked the Council to review its decision. The Council replied on 17 April 2018 saying the Council’s Review Panel would consider his application. The letter gave details of what information Mr X should present and the date by which the Council must receive the information.
  8. The Council wrote to Mr X on 30 May 2018 with the Review Panel’s decision. The letter says the Council took a professional medical opinion from its medical adviser. The letter says the Council considered the medical adviser’s opinion and:
    • Mr X’s own declarations and submissions;
    • Tenancy File Notes;
    • Third Party submissions;
    • Medical priority assessment form and medication details;
    • Advice from the Council’s medical adviser.
  9. In its decision, the Council says the issue is the suitability of Mr X’s current home which it says is a first-floor property which has been adapted to meet his needs. It notes Mr X wants to move to a larger property so he has room for his children to stay but that is an overcrowding issue not a medical one. The Council said it can only offer a medical priority:

“…where it is clearly established that your current accommodation is adversely affecting your medical conditions and your need to move on medical grounds is urgent, with no alternative measures that can be taken to ease your situation. This has not been established in your case, therefore urgent medical priority does not apply…”

  1. The letter sets out Mr X’s right to have his medical priority decision reviewed by a judicial review in the High Court.
  2. Mr X objects to the decision because he says it does not take enough account of his disability and that therefore he has been discriminated against contrary to the Equality Act. Mr X says the Council does not understand the complexity of his conditions, the pain he experiences and the impact on him.
  3. When asked to supply notes and papers presented to the Review Panel the Council replied this had been organised by its independent medical advisor and therefore it did not have access to those papers. In commenting on my draft decision, the Council says it presented the papers listed in paragraph 25 to its medical adviser and to the Review Panel.
  4. In September 2018 Mr X moved home using the Council’s mutual exchange scheme. Mr X therefore no longer lives in the accommodation which he believed was having a detrimental impact on his medical conditions. Under the terms and conditions of the mutual exchange scheme the tenants agree the suitability of the home to which they are moving. On completing the exchange Mr X’s application for housing ended.

Analysis – was there fault leading to injustice?

  1. My role is to consider if the Council awarded priority to Mr X’s housing application in compliance with the housing allocations policy. It is not to decide what priority the Council should award Mr X.
  2. The Housing Act 1996 imposes a legal duty on councils to give priority to certain groups of applicants including those who have medical conditions and disabilities. The Council’s housing allocations policy does that and therefore it has acted in line with that Act.
  3. When the Council awarded Priority Band 3 in February 2018 its letter should have included details on how Mr X could appeal or ask for a review of the priority banding it had awarded. This did not prevent Mr X from asking for a review but should be noted by the Council for future reference.
  4. In deciding whether to award medical priority the Council should consider that its medical adviser has not examined or spoken to Mr X. The medical adviser confirms this in the advice given to the Council. It is for the Council not the medical adviser to decide if it should award priority. It is a housing officer’s decision. It should be made having considered the medical evidence presented with the application and appeal and having taken the independent medical adviser’s advice. It is for the medical adviser to give advice, not decide whether priority should be given and in presenting its advice the medical adviser should make that clear. I understand Mr X’s anxiety that the housing officer, independent medical adviser and review panel may not have expertise in the conditions from which he suffers. However, the law imposes a duty on the Council as housing authority to decide priority. In deciding Mr X’s priority, the Council had before it all the medical information Mr X presented, his housing needs assessment and the medical advisor’s advice. It followed the correct procedure and considered all relevant information therefore I find it acted without fault.

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Final decision

  1. I find the Council acted without fault in considering Mr X’s application for housing and in its award of priority under its housing allocations scheme.

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Investigator's decision on behalf of the Ombudsman

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