Birmingham City Council (18 006 907)

Category : Housing > Allocations

Decision : Upheld

Decision date : 01 Feb 2019

The Ombudsman's final decision:

Summary: Miss X complains about the way the Council considered her housing applications and request for priority. There was delay in the Council processing Miss X’s housing application. There is also fault as the Council failed to give reasons for decisions on Miss X’s housing application or provide the names and positions of officers reaching those decisions. The Council also failed to identify it had already received medical evidence from Miss X entitling her to a higher band. The Council should backdate Miss X’s priority band and pay her £250 for the time and trouble and uncertainty caused. The Council should also take action to ensure it sets out reasons for its decisions in future.

The complaint

  1. Miss X complains the Council did not backdate priority on her housing application. Miss X says the Council awarded her priority for overcrowding after reviewing its earlier decision on her application. Miss X says her circumstances have not changed so she should have always been entitled to priority for overcrowding. This is because her sons are unable to share a bedroom due to medical issue.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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)
  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. I have spoken to Miss X about her complaint and considered the information she provided to the Ombudsman.
  2. I have also considered the Council’s response to my enquiries. This includes:
    • The Council’s responses to Miss X’s housing application and appeal.
    • Medical evidence Miss X provided to support her application.
  3. I have also considered the Ombudsman’s guidance on remedies and our previous findings against the Council on similar matters.
  4. I have written to Miss X and the Council with my draft decision and given them an opportunity to comment.

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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. 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))

  1. 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.
  2. The council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))
  3. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

The Council’s housing policy

  1. The Council gives reasonable preference to housing applicants through a “priority banding system”. The highest band is “Band 1” for people with a “very urgent need to move” and the lowest band is “Band 4” who do not qualify for a reasonable preference but have another reason for needing to move.
  2. The Council’s policy says it applicants should request a review of any decision within 21 days of being notified of that decision.
  3. The Council’s policy says it will consider the review within 56 days of the request and the review will be carried out by an officer “more senior (than the original decision maker)”.
  4. The Council’s website says:
  5. “You must request a review within 21 days of receiving your decision letter. A panel of officers who are independent of those who made the original decision will review the decision and notify you of the outcome of the review within 56 days.  There is no right to appeal the review decision although you can challenge it through judicial review. You are likely to need legal advice if you want to consider this option”.

What happened

  1. Miss X complained to the Ombudsman in 2016 about her housing application. She said the Council had failed to consider medical evidence she had provided to support her application. Miss X had been registered for housing with the Council since 20 January 2016.
  2. We issued a decision in March 2017. We found the Council failed to properly explain its decision to Miss X. However, we said this had not caused Miss X an injustice as the Council had properly considered the evidence she provided when it reviewed its decision to award her any priority.
  3. We said the Council should review the wording of its decision letters to ensure it explained how it had considered each applicant’s circumstances/
  4. In April 2017 the Council introduced a new housing allocations scheme and required everyone currently registered for housing to reapply. Under the new scheme only those applicants who were entitled to reasonable preference or those with an identified need to move would be allowed onto the Council’s allocation scheme.
  5. The Council says Miss X failed to provide any evidence to support her new application and so it closed her application on 13 September 2017. The Council’s letter to Miss X said it had requested information from her on 30 August 2017. The letter did not give the name of the Council officer who had made the decision.
  6. Miss X submitted an appeal on 11 October 2017. The Council classed this as a new housing application. Miss X also complained to her local councillor who contacted the Council on her behalf to find out what was happening with her application.
  7. Miss X provided the Council with medical evidence in a letter dated 18 October 2017. The evidence included a letter from a consultant paediatrician dated 28 October 2015 which said Miss X’s eldest child had a diagnosis of Attention Deficit Hyperactivity Disorder. The letter said:

“[Miss X and her family] recently moved into a two bedroomed property… [both children are] sleeping in the same room… Unfortunately [the eldest child’s] disturbed sleep is having an adverse impact on [the other child]. [The other child] is struggling at school and has challenging and aggressive behaviour and is awaiting an assessment [at a Children’s Centre]. I would be very grateful if you could take this information into account and if possible offer this family a 3 bedroom property so that [the eldest child] is able to have his own space and his disorder does not impact on [Miss X’s other child]”.

  1. Miss X’s councillor chased progress of the appeal throughout November and December 2017.
  2. On 10 January 2018 Miss X provided the Council with a letter from her GP dated 21 December 2017 which said:

“[one child] has a diagnosis of Attention Deficit Hyperactivity Disorder for which he is on medication. There are concerns about [the other child’s] behaviour; he is known to have developmental delay and is currently under assessment for possible Autistic Spectrum Disorder. As a result of these difficulties both children are hyperactive and behaviour which is challenging to manage. They also have difficulty relating to others. I understand that the family live in a two-bedroom house and this causes problems with the boys sharing a bedroom. They would benefit from having a separate bedroom and space of their own to calm themselves down”.

  1. The Council wrote to Miss X on 12 January 2018 to inform her it had awarded her application Band 3 priority for overcrowding. The Council said Miss X’s registration date was 12 January 2018. The letter did not give the name of the Council officer who made the decision.
  2. The letter did not give reasons for the Council’s decision. However, in response to an e-mail from Miss X’s councillor, the Council said it’s decision was based on medical evidence provided by Miss X which said her two children could not share a bedroom. The Council said there was no medical evidence to support a higher banding but Miss X was able to bid for three bedroom houses.
  3. Miss X contacted the Council on 22 January 2018 to say she was unhappy with its decision to place her in Band 3. Miss X said her children could not share a bedroom due to their behaviour and were “a danger to one another”. Miss X said this was having an impact on her mental health and she was on medication as a result.
  4. The Council wrote to Miss X on 23 January 2018 and advised it would aim to complete her review by 19 March 2018. The Council also invited Miss X to provide additional information to support her review.
  5. The Council wrote to Miss X on 2 March 2018 to say it had decided to refer her application back to “the original deciding officer to consider a new assessment of your housing application”. The Council said Miss X would be entitled to request a further review of any decision.
  6. On 10 April 2018 the Council wrote to Miss X to say her application had been “re-assessed” and she had been awarded Band 3 priority but that her registration date was now 20 January 2016. The letter did not provide the name of the officer who had reached the decision.
  7. There was no further information in the letter to Miss X about how the Council had considered the evidence Miss X had provided.
  8. On 22 June 2018 Miss X provided the Council with a letter from her GP and the children’s school. The GP’s letter dated 2 February 2018 said:

“I can see that [the children] are very hyperactive together and that this can cause difficulties within the family and I am sure it would be beneficial to Mum to be able to move sooner than two years’ time/. This may also help [one of the children] make progress with his development and education”.

  1. The letter from the school was dated 5 February 2018. It said:

“The eldest [child] has a diagnosis of ADHD and the youngest boy is awaiting a diagnosis of ASD. They currently share a bedroom which is not ideal for either child. Both boys need their own bed room”.

  1. The Council decided to award Miss X Band 2 priority. The Council changed Miss X’s registration date to 22 June 2018 which is the date it received further evidence from Miss X about her circumstances.
  2. On 31 July 2018 the Ombudsman issued a decision about a new complaint from Miss X. We said Miss X could appeal the Council’s decision to change the registration date of her application. We said she should do this before complaining to the Ombudsman. We asked the Council to accept Miss X’s complaint to us as a request for a review of its decision.
  3. On the same day the Council issued its decision on Miss X’s review request. The Council said it could not backdate Miss X’s registration date. It said it had awarded her Band 2 priority based on a change in her circumstances. The Council said the registration date was set to 22 June 2018 as this was the date it had received information about her change of circumstances. The Council said its decision was in line with its policy.
  4. The Council’s letter said the only way Miss X could challenge its decision was by judicial review. The letter did not give the name or position of the officer who had completed the review.

My findings

  1. I can only investigate what happened since March 2017. This is because the Ombudsman has already reached a decision on the Council’s actions before this date. We found fault as the Council failed to explain the reasons for its decision about Miss X’s application. The Council agreed to review its decision letters to ensure all relevant issues are addressed.
  2. There is no fault in the Council’s decision to cancel Miss X’s housing application in September 2017. There is no evidence Miss X provided the Council with information it asked for during this period. The Council’s letter to Miss X explained it had already asked her to provide the information on 30 August 2017.
  3. There is fault in how the Council dealt with Miss X’s housing application after this date.
  4. There was delay in the Council assessing Miss X’s application when she re-applied for housing on 11 October 2017. It took the Council 13 weeks to consider her application. Whilst there are no statutory timescales for assessing a housing application and no timescales in the Council’s policy, 13 weeks is still a significant period especially as there is no evidence the Council carried out any enquiries into Miss X’s circumstances during this time. Therefore the 13 weeks taken to assess Miss X’s application constitutes delay and therefore the Council is at fault. This caused Miss X time and trouble as she had to chase the Council through her local councillor.
  5. In March 2017 the Council told the Ombudsman it would review its decision letters to ensure they explained how relevant information had been taken into account. However, the Council’s letters to Miss X of 12 January 2018, 2 March 2018 and 10 April 2018 fail to explain how the Council reached its decisions on Miss X’s application and what it made of the information she provided. This is fault. As a result of this fault there is no evidence the Council has properly considered Miss X’s case.
  6. Additionally, none of the Council’s letters to Miss X give the name or position of the officer reaching the decision on her application or review requests. This is fault. The Council’s policy says reviews will be carried out by officers who are more senior than the original decision maker. However, without information about who is reaching decisions applicants cannot know whether this is happening.
  7. There is also fault in the way the Council dealt with Miss X’s review request in July 2018. The Council reached its decision within a day of receiving Miss X’s request for a review of its decision not to backdate her priority banding. The Council would usually write to invite applicants to submit further supporting evidence. Failure to do so was fault.
  8. The Council says the evidence provided in June 2018 was different to evidence previously provided by Miss X to support her application and therefore it dealt with it as a change of circumstances. However, there is nothing new in evidence provided in June 2018 compared to evidence Miss X provided in October 2017 and January 2018 about her children’s medical conditions. Failure to identify this is fault. If the Council had properly considered evidence Miss X provided, it seems likely the Council would have awarded Miss X’s housing application with Band 2 priority from 20 January 2016. This is based on the Council’s previous decision to backdate Miss X’s priority and the date of the paediatrician’s letter which show Miss X has been experiencing difficulties since 2015.
  9. There is also fault in information provided to applicants about the review process. The Council’s website says decisions will be made by a “panel” but this is not the case under the current allocations policy. The Council’s letters and policy documents also say the only way to challenge a review decision is by “judicial review”, however applicants and tenants applying for a housing transfer can complain to the Local Government and Social Care Ombudsman and the Housing Ombudsman.
  10. As a result of the fault I have identified Miss X has been put to time and trouble and been caused uncertainty as a result of the Council’s failure to explain the reasons for its decisions.

Agreed action

  1. The Council has agreed to take the action I have recommended to remedy the injustice caused to Miss X. The Council has agreed to:
    • Backdate Miss X’s Band 2 award to 20 January 2016.
    • Pay Miss X £250 for the time and trouble and uncertainty caused by delays in processing her application and failure to explain its decisions.
    • Write to Miss X to apologise for delays in processing her application and failure to properly explain its decisions.
  2. The Council should take this action within 8 weeks of my final decision.
  3. The Council should also take the following action to improve services provided to housing applicants as a result of the fault I have identified:
    • Update its website to reflect the proper review process.
    • Ensure decision letters and review decision letters contain information about what evidence was considered and how this was applied to the Council’s allocations policy.
    • Ensure decision letters contain the name and job title of the decision maker so applicants can be sure any decisions are being reviewed by a more senior officer.
    • Ensure applicants are given information about the Local Government and Social Care Ombudsman and Housing Ombudsman when they are issued with review decisions. The Council’s allocations policy should also be updated to include information about complaints to both Ombudsman services.
  4. The Council should provide the Ombudsman with evidence that it has carried out a review of relevant processes to ensure these service improvements have been implemented. The Council should provide this evidence within 6 months of my final decision.

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Final decision

  1. I have completed my investigation. This is because I have found fault causing injustice and the actions I have recommended is a suitable way to remedy this.

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Investigator's decision on behalf of the Ombudsman

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