Harrogate Borough Council (18 003 748)

Category : Housing > Allocations

Decision : Upheld

Decision date : 31 Jan 2019

The Ombudsman's final decision:

Summary: Miss B complained about the treatment of her housing application. We do not find fault causing Miss B injustice with the Council’s decision that Miss B refused two suitable housing offers so it should cancel her application. The Council was at fault later for expecting Miss B to get an occupational therapist’s assessment that the Council considered necessary. That fault caused Miss B avoidable uncertainty, time and trouble. The Council agreed our recommendations to apologise, pay Miss B £150 and change its procedures as necessary.

The complaint

  1. The complainant, whom I shall refer to as Miss B, complains the Council wrongly decided she had refused two suitable offers of housing and has not taken proper account of more recent medical information about Miss B and one of her children. Miss B says as a result, the Council removed her application from the housing waiting list, it has not yet taken account of her housing needs in view of her and her child’s medical conditions and she and her family remain in unsuitable housing.

What I have investigated

  1. I investigated recent matters directly related to Miss B’s housing, on which I might be able to reach a clear enough view. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  4. We have discretion to decide whether start, continue or discontinue investigating a matter. (Local Government Act 1974, section 24A(6), as amended)
  5. 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. I considered the information Miss B provided and discussed the complaint with her. I made written enquiries of the Council, considered its response and viewed online maps and photographs of areas where the Council offered Miss B housing. I considered the Council’s and Miss B’s comments on a previous draft decision and consequently amended some of my draft findings. I gave the Council and Miss B the opportunity to comment on a further draft decision.

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What I found

  1. Miss B and her family live in a two-bedroom property without a direct ground-floor access. She was on the Council’s housing waiting list. She wanted to move to a property with ground-floor entry due to her mobility problems.

Refusal of offers of housing

  1. The Council’s housing allocations policy states applicants who refuse two offers that are suitable in terms of the properties’ type and location will have their applications cancelled. They will normally have to wait 12 months before they can reapply. One part of the policy refers to cancellation if an applicant refuses ‘more than two’ offers. However, the balance of evidence around the policy as a whole satisfies me that was an error and the policy intends to cancel applications after the refusal of two suitable offers.
  2. In 2017, the Council cancelled Miss B’s application as it said she had refused two suitable offers, one in 2014 and another in 2017. It is not my role to decide if a particular offer was suitable. My role, subject to any other limits on the Ombudsman’s powers, is to consider how the Council reached its decisions.

Property offered in 2014

  1. In 2014 the Council offered Miss B Property X. Miss B refused and complained to the Council about the offer. Miss B told me the Council then told her it would only make one more offer and she was dissatisfied with that response at the time. So the restriction described in paragraph 5 applies.
  2. Miss B told me she did not complain to us within 12 months because she did not know how to complain further and she has some cognitive problems. I note those points but I also note: in December 2014, the Council told Miss B she could complain to us and gave her our contact details; Miss B was able to complain to the Council in 2014; and she was able to complain to us by telephone in 2018.
  3. Therefore I consider Miss B could reasonably have complained to us within 12 months of knowing she was unhappy with the Council’s position in 2014. Additionally, due to the passage of time, I might not be able to reach a clear enough view now about events several years ago.
  4. So, having regard to paragraphs 5 and 6 above, I shall not consider further the Council’s decision that the 2014 offer was suitable. Therefore I do not question that decision.

Property offered in 2017

  1. In 2017 the Council offered Miss B a two-bedroom ground-floor flat, Property Y. Miss B refused this and argued it was not suitable. The Council decided it was suitable. I have considered how the Council reached that view despite Miss B’s refusal reasons. In summary, Miss B’s refusal reasons were:
      1. She had requested a house or bungalow, not a flat.
      2. She was awaiting a medical diagnosis for one of her children, who might need a separate bedroom for medical reasons. Miss B said she had understood from a recent multi-agency meeting, where the Council was represented, that the Council would await her sending this medical information within about four weeks but instead the Council had offered Property Y.
      3. Within six months of the offer, a forthcoming change in the family’s circumstances meant Miss B would be eligible for three-bedroom accommodation under the policy. Miss B argued it would be inappropriate to have to move to Property Y and then move again.
      4. Getting the children between Property Y and their school would be difficult but changing school would also cause difficulties, especially if the family would later have to move again to a three-bedroom property.
      5. Property Y did not have enough outdoor space for the children.
  2. On point a), Miss B had not expressly sought a flat. So in one sense Property Y was not the type of property she sought. However, Miss B had sought a property with ground-floor entry; this was a main reason she wanted to move. So in that sense Property B matched what she wanted. The Council told Miss B it considered ground-floor accommodation in general suitable for her needs. It says that, given all the information it had about Miss B’s mobility issues, it did not consider it reasonable only to consider offering her houses.
  3. Responding to my earlier draft decision, Miss B pointed out the Council’s allocations scheme states, ‘Applicants are given the opportunity to express their choice on the type and location of their preferred accommodation.’ Miss B argues that, as she did not want a flat, this offer was not suitable because it did not meet her ‘choice on the type’ of accommodation. In response, the Council says such choice is not absolute but is constrained by, for example, the numbers of certain types of properties.
  4. I only need to decide if the Council is at fault on a point if it seems that any fault would have caused the complainant a significant injustice. Therefore I have considered what would have happened if the alleged fault here – cancelling Miss B’s application because she refused a flat – had not happened.
  5. If the Council had not cancelled the application in October 2017, it would still only have considered Miss B for two-bedroom properties until her family circumstances changed six months later. I consider it more likely than not that Miss B would have refused any two-bedroom properties offered for the same reason she considered Property Y unacceptable as it only had two bedrooms (see points b) and c) below). So, even if the Council had not cancelled Miss B’s application, I do not consider it likely Miss B would have accepted any offers of two-bedroom properties.
  6. By the time Miss B’s family circumstances changed and the family became eligible for three bedrooms, there had been another change as Miss B had told the Council in January 2018 about her new medical diagnosis (see below). We know, from what happened then, that the Council would not have offered Miss B any properties until it had the further information it wanted about her medical condition.
  7. For these reasons, whether or not the Council was at fault on the ‘choice’ point, I do not consider it disadvantaged Miss B significantly. Therefore I need not decide whether the Council is at fault here. I shall not pursue this point further.
  8. On point b), The Council said it had not agreed to suspend any action on Miss B’s application pending receipt of information about her child’s possible diagnosis. Rather it had said it would reassess the housing application in the light of any further information it received, as it would for any applicant.
  9. There may have been some confusion about what was said at the meeting. However, on balance, I consider the Council’s response, and the minutes of the meeting, are in line with the usual expectation that a council would reassess any application if it received more information (any applicant might have reason to supply new information at any time) but that would not prevent it making offers based on the information it has at any particular time.
  10. Also, Miss B did not then provide any medical information about the child within the timescale mentioned in the meeting. So the alleged fault here did not disadvantage Miss B significantly.
  11. On point c), the Council said the family becoming eligible to be considered for three bedrooms some months later would not guarantee an offer of three-bedroom accommodation within any particular timescale, due to the housing shortage. So it did not consider this factor made the offer unsuitable.
  12. The Council told me it bases offers on a family’s need at the time of the offer, not on any future event and it must manage its vacancies and applications as they are at any particular time. It reiterated that, although Miss B’s family could later become eligible for three bedrooms, that did not mean they would necessarily be offered a three-bedroom property soon.
  13. It is not ideal to move if the new property might become unsuitable (in terms of the Council’s policy) in the foreseeable future. However, that does not necessarily make the Council at fault. There will be families in two-bedroom homes who are eligible for three bedrooms and have waited for a larger property for some time. Miss B would have been no different from those other applicants when her family’s circumstances changed and she could have reapplied to move then.
  14. Here, I do not fault the Council’s starting-point that it should make offers based on the vacancies and applicants’ circumstances and priority at the time, rather than on possible or even likely future changes. The shortage of social housing generally reinforces the Council’s point as Miss B might have a considerable wait for three bedrooms. So there was no fault in the Council prioritising meeting Miss B’s need for ground-floor accommodation over waiting even longer to meet a future need for another bedroom.
  15. On point d), the Council replied it cannot guarantee offering a property near a particular school. I note that, for housing letting purposes, Harrogate borough is divided into letting areas. Property Y was in the broad letting area where Miss B’s housing application said she wanted to live. While I understand Miss B’s concern, I do not see fault in the Council’s consideration of this point.
  16. On point e), the Council’s policy gives some priority to some families without a garden/enclosed play area. I do not take that to mean any property offered to such a family must have an enclosed garden or play area. The Council says Property Y has an ‘open plan garden area’. Online photographs of the area show outdoor grassed areas, though not individual enclosed gardens.
  17. I note Property Y appeared not to have its own enclosed play area. However, while this might not be ideal (as the Council’s policy recognises), I do not consider the policy means an offer would be unsuitable just because it might not satisfy all of a family’s needs. So I do not criticise the Council on this point.

My decision on the complaint about the refused offers

  1. Overall, I have not found fault but for which the Council’s decisions on the two offers were likely to have been different. Therefore I do not criticise the Council for cancelling Miss B’s application.

Medical information

  1. On 9 January 2018, Miss B told the Council she had been diagnosed with a medical condition. For confidentiality reasons, I shall not give details, but the condition could further affect her mobility and cause other difficulties.

The Council’s initial reaction to the new medical information

  1. On 18 January 2018, the Council told Miss B it was reinstating her housing application. The new medical development meant Miss B need not wait 12 months from the cancellation of her application. The Council said it could not consider Miss B for any properties until it reassessed her housing needs, including what properties would be suitable for her, in view of her medical circumstances.
  2. In principle, there was no fault in the Council’s response, as long as it then progressed matters promptly. The Council’s records show an officer spoke to Miss B on 19 January 2018 and asked her to send some more information, including evidence of her diagnosis. The Council says it reiterated this request on 28 March and in mid-May. On 11 June 2018, Miss B supplied copies of letters from a hospital consultant confirming her medical condition.
  3. After the Council’s request on 19 January, the onus was on Miss B to provide the information requested. I do not consider the Council was at fault between then and 11 June 2018.

The Council’s desire for an occupational therapist’s assessment

  1. On 12 June 2018, the Council told Miss B it needed an occupational therapist (OT) to assess her exact housing needs. The Council expected Miss B to get this assessment. I understand Miss B then contacted her GP and was referred first to an NHS OT and then to an OT elsewhere dealing with social care matters. It is unclear when an OT assessed Miss B but the Council received the OT’s report on 1 November 2018. The Council activated Miss B’s application a few days later, since when it has sought suitable housing for her.
  2. I asked the Council why it did not obtain an OT’s report itself if it considered this essential. The Council replied it does not usually make referrals to medical professionals but expects applicants to supply any supporting information relating to their accommodation needs. Later, responding to an earlier draft decision on this complaint, the Council said that, in its experience, it is quicker for applicants to get OT’s assessments themselves than for the Council to try to request these via the social care or health systems.
  3. The important point here is that it is the Council’s responsibility, as housing authority, to decide what Miss B’s housing needs are. The Council can take account of information from other sources, including medical professionals, but it cannot outsource its decision-making.
  4. There is no fault in expecting an applicant to provide information from a medical professional they are in contact with anyway, for example, their GP, health visitor, district nurse or a consultant such as the one who was treating Miss B. However, that is fundamentally different from asking an applicant to get evidence from a professional they are not already in contact with. Miss B was not already seeing an OT.
  5. The purpose of the information the Council wanted from the OT was to inform the Council’s decision about what housing Miss B should be eligible for. The onus was on the Council to arrange to obtain information it needed to complete its housing needs assessment. Indeed, many councils have established arrangements with local OT services for such situations. If the Council cannot make such arrangements with local public-sector OT services, it could seek to commission OT reports privately.
  6. I note the Council’s point about local OT services dealing more quickly with approaches from individuals than from the Council. However, that appears to reflect a situation in which the Council has not made any formal arrangements with any other organisation for obtaining OT input. Anyway, my point here is not just about timeliness, important though that is. The point is also about the inappropriateness of expecting an applicant to do this part of the Council’s work for the Council.
  7. In the circumstances, I consider the Council was at fault for expecting Miss B to try to navigate the NHS and social care systems to get OT input on something that was primarily a housing matter for the Council to decide, not fundamentally an NHS or adult care matter.
  8. I have considered the consequences of the Council’s fault. If the Council had not expected Miss B to obtain the OT’s report, and if it had an established arrangement for obtaining such reports, the Council would have sought this itself. So Miss B would have been spared the time and trouble of seeking this assessment herself.
  9. It is also possible that, but for the Council’s fault, the assessment would have been with the Council more quickly, so the Council could have activated Miss B’s housing application sooner. This is less clear, however, since there could anyway have been some delay depending on the availability of an OT and Miss B’s ability to meet an OT for any assessment.
  10. I consider Miss B’s time and trouble having to obtain the assessment herself, and the uncertainty about whether matters would have progressed more quickly, are injustices resulting from the Council’s fault.
  11. I have not seen evidence of Miss B giving the Council any evidence of her child having a firm diagnosis that might affect the family’s housing needs. So I do not find fault on that point.

The Council’s complaint-handling

  1. When the Council finished dealing with Miss B’s complaint, it said she could go to the Housing Ombudsman Service (HOS) if she was dissatisfied. That was incorrect. The Local Government and Social Care Ombudsman, not the HOS, considers complaints such as this.
  2. This fault caused Miss B a little inconvenience as she telephoned the HOS before being redirected to us. That in itself is not a significant injustice. Nevertheless, the Council might usefully remind itself of the respective Ombudsmen’s roles.

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Agreed action

  1. At my recommendation, the Council has agreed to:
      1. Apologise to Miss B for the fault and resulting injustice I have identified. The Council should do this within one month of today.
      2. Pay Miss B £150 to recognise that injustice, within one month of today.
      3. Review what happened here and make any necessary changes to procedures or staff training to minimise the chances of the identified faults recurring. The Council should complete this within two months of today.

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Final decision

  1. I have completed my investigation as the Council’s agreement to my recommendations above is a satisfactory remedy for the injustice the Council’s faults caused.

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Parts of the complaint that I did not investigate

  1. I did not investigate whether the Council bullied or deliberately obstructed Miss B. Those points are not central to the main substantive issue, which is Miss B’s housing. Also, those points might be subjective, and I am not likely to be able to reach a clear enough view on them.

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Investigator's decision on behalf of the Ombudsman

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