Summary: Mr X complained the Council delayed in awarding him maximum priority on the housing allocations register. On the evidence so far, the Council was at fault when it failed to follow its Housing Allocations Policy and award Mr X the maximum priority in 2013. This caused Mr X distress because he was in accommodation which could not be adapted for his wheelchair for a prolonged period. The Council has agreed to award Mr X maximum priority and backdate this to 2013. It has also agreed to make him a financial payment of £4,400 and report to the Ombudsman on how it is meeting its public sector equality duty in providing housing to disabled applicants.

The complaint

1. Mr X complained the Council delayed in awarding him the maximum medical priority from 2002 to the present day.
2. Mr X said this has caused him significant distress because he finds it difficult to access his bathroom and kitchen.

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The Ombudsman’s role and powers

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. In this case I have exercised my discretion to look at events from 2013 onwards. This is because information from Mr X suggested the Council was aware from this date his property could not be adapted for his needs but the Council failed to address this issue. This has led Mr X to potentially experience a significant, ongoing injustice. In addition, the Council has retained its records from this period which means I can carry out a meaningful investigation.
5. 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)
6. 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

7. I spoke to Mr X and considered the information he provided.
8. I considered the information I requested from the Council. This included the Occupational Therapy assessment reports, Mrs X’s care and support plans, Mr X’s case files, correspondence between the Council and a Charity who supported Mr X and complaints correspondence.
9. I considered the following legislation and documentation:
• The Housing Act 1996
• The Council’s Housing Allocations Policies in effect between 2013 and 2018;
• The Ombudsman’s Guidance on Remedies.
10. I have written to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

11. Part 6 of the Housing Act 1996 covers allocations of local authority housing. Section 167(2) sets out the circumstances of applicants to whom a local authority must give reasonable preference when deciding who will be offered a property. These include:
• applicants occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
• applicants who need to move on medical or welfare grounds (including grounds relating to a disability).

Council’s Housing Allocations Policy

12. Because this complaint covers the period 2013 to the present day, there have been two housing allocations policies in place. In relation to this complaint, however, the policies have remained consistent in dealing with applicants who have, or may have, medical priority.
13. Each policy states that all applicants will be placed in the appropriate housing needs band based on an assessment of their needs. In line with the law, applicants who need to move on medical grounds are given reasonable preference.
14. The Council operates a banding system where applicants with the highest priority are placed in Band A. Applicants who need to move urgently because of a critical medical or welfare need are given 300 points and priority A banding.
15. Applicants who need to move because they have been assessed as having a serious medical or welfare need, but that move is not deemed urgent, are given 150 points and placed in Band B.
16. Each Housing Allocations Policy also states that tenants who require extensive disabled facilities that can be provided more appropriately in alternative accommodation will be awarded Band A priority.
17. The Council will decide the priority within bands using the applicant’s effective date. This is usually the date the application is received, but where an applicant receives priority on medical grounds, the effective date is the date they applied for the award.

Public sector equality duty

18. The Public Sector Equality Duty (PSED) is defined and set out in Part 11 of the Equality Act 2010 (the Act). The duty requires councils to have due regard to advancing equality of opportunity between people who share protected characteristics, such as a disability, under the Act and those who do not.
19. The aim of the PSED is to remove or minimise disadvantages suffered by people with protected characteristics, to take steps to meet the needs of people from protected groups (where their needs are different to other people) and encourage them to participate in public life.

What happened

20. Mr X lives in a one bedroom, ground-floor council owned flat. Since around 2002, he has had spinal damage and had difficulty walking.
21. In 2008, Mr X applied to the Council for rehousing and requested medical points. The Council awarded him 150 medical points which placed him in Band B.
22. The Council’s Occupational Therapy (OT) service assessed Mr X. Following this assessment, the Council gave its approval for adaptations to widen the bathroom door and to create a wet room. Mr X refused these adaptations because he wanted to move to a larger flat so his son could live with him on a full-time basis.
23. Mr X remained in the same flat. In 2010 and 2011, he completed housing register application forms and submitted medical evidence. The Council reassessed Mr X but he remained in Band B.
24. In 2013, the Council carried out another OT assessment. The report stated:
• The doorway to the bathroom could be widened and it was therefore feasible to adapt the bathroom to a wetroom;
• The doorway to the bedroom could be widened;
• The doorway into the kitchen could be widened and it would be feasible to adapt the current kitchen;
• The doorway to the lounge could not be widened. Access to the kitchen was through the lounge. Therefore, Mr X would have difficulties accessing his kitchen; and
• Mr X was experiencing difficulty accessing the rear of his property because there was a small step down to the rear access.
25. Mr X also said he was unable to access his bathroom and so had to strip wash and use a commode.
26. In May 2013, the OT sent a rehousing report to the Council’s Housing Department. This said Mr X’s flat could not be fully adapted to wheelchair standards. It recorded Mr X was “at increased risk of knocking his knuckles on the door frames. The client also has ongoing grade 3 pressure sores on his ankle due to the wheelchair casters knocking against his ankle when attempting to enter/exit rooms”.
27. The Council’s Adult Social Care Team also carried out a review of Mr X’s needs in 2013. This recorded his living environment was not suitable for a wheelchair user.
28. The Council failed to carry out Mr X’s annual social care review in 2014. Therefore, Mr X did not have another review until April 2015. This recorded Mr X had removed the door surrounds himself so he could access the kitchen and bathroom. However, no further adaptations had been carried out. The review recorded Mr X “either needs to move to a more appropriate environment suitable for wheelchair users or to have his current home adapted to meet his needs… [Mr X] reports that having to manage in his current environment is not enabling his independence and is causing him much distress and affecting his emotional wellbeing”. There is no evidence, however, that the Adult Social Care Team passed its concerns onto the Housing Department.
29. In July 2015, the OT service contacted the Housing Service for an update following submission of its report in May 2013 but received no response.
30. In October 2015, the OT service reassessed Mr X. The report recorded Mr X was able to access all rooms in his flat because he had taken the door surrounds off. The report stated Mr X’s bathing equipment was very rusty and needed to be replaced. In addition, Mr X was having difficulty using the toilet because it was too low. The OT recommended new bathing equipment and the toilet to be raised.
31. In April 2016, the OT service submitted another rehousing report to the Housing Service. This contained the same information as the rehousing report it submitted in 2013. It said Mr X needed to be rehoused because his current property could not be adapted for wheelchair use.
32. In 2016 and 2017, Mr X submitted to the Council further housing application forms with medical evidence. The Council considered these and the 2016 OT rehousing form but decided in both cases that Mr X’s priority banding remained Band B.
33. Mr X approached a national charity which agreed to act as his legal representative. The charity wrote to the Council in July 2017 challenging its decision to not award Mr X Band A priority. It said the Council had failed to follow its own Housing Allocations Policy which stated tenants who required extensive disabled facilities that can be provided more appropriately in alternative accommodation would be awarded Band A priority.
34. The Council responded to the charity in November 2017. It said Mr X’s banding remained in Band B. The Council went on to say “[Mr X] is not considered to have a critical need and as such Band A does not apply… I have been advised that at present the Council does not have any wheelchair accessible or adapted properties and will not be having any properties of this type for the next two years. Approving [Mr X] for a direct let would not speed up the process for an offer of accommodation”.
35. Also in November 2017, the OT service assessed Mr X again. The report recorded the small step to the rear of the property had been filled so Mr X could access the rear. Mr X was able to use the toilet and bath. It also recorded works to adapt the kitchen and bathroom had been approved and would start shortly. Mr X asked for a ramp so he could access the bins outside his property. He also said he wanted a shower installing.
36. Mr X refused the kitchen adaptations because he had recently bought a new cooker. He wanted the Council to dig out an area of the kitchen floor so his new cooker would be at a lower height for him to access. The Council had refused to do this. The Council had also suggested that it could carry out works so Mr X could access the bins. However, Mr X refused this because he wanted a ramp and the proposed works did not include one. Mr X also refused the works to his bathroom.
37. In December 2017, the charity challenged the Council’s response from November 2017 and threatened a judicial review.
38. In January 2018, the Council responded to the charity. It said that it had reviewed the medical evidence and OT report again and had decided to award Mr X Band A priority from 2 January 2018. Later in January, the Council agreed to backdate Mr X’s Band A priority to April 2016 when the OT issued its second rehousing report.
39. In 2018, the Council approved Mr X for supported housing for older people. The Council offered Mr X an introductory tenancy on a property but he turned it down because he did not wish to live in supported housing for older people.
40. Mr X complained to the Council about the length of time he had been waiting to move. The Council response contained the following information:

“the demand for housing in Haringey cannot be met… and even households with a high housing need have to wait many years… there are very few wheelchair accessible properties… so households waiting for adapted properties will wait even longer…

In addition to the normal demand, Haringey are currently having to move households from two tower blocks… these families need to be moved urgently… these households will take priority over other cases”.

41. Mr X remained unhappy and complained to the Ombudsman.

Ombudsman investigation

42. In response to my enquiries, the Council said it could find no evidence that the 2013 OT rehousing report was received by the Housing Department and the OT service could not find proof it had sent the email after this length of time. The Council was, therefore, unable to ascertain where the error occurred. As a result, the Council said it would exercise its discretion and backdate Mr X’s Band A priority date to May 2013. The Council offered its sincere apologies to Mr X.

My findings

Failure to act in line with the Council’s Housing Allocations Policy

43. The OT service assessed Mr X in 2013 and found his property needed extensive adaptations to make it suitable for a wheelchair user. Not all of these adaptations could be carried out. Therefore, the OT report stated Mr X needed to be rehoused. At this stage, under the Council’s Housing Allocations Policy, Mr X should have been awarded Band A priority. Because of a communication error, the Council failed to do this. This is fault.
44. Over the next four years, the Council had a number of opportunities to put matters right:
• in 2014, the Council failed to carry out Mr X’s annual adult social area review. If it had done so, Mr X’s rehousing requirements may have been identified;
• in 2015, the OT service emailed the Housing Department and asked if Mr X’s priority banding had changed as a result of the 2013 report. The Housing Department failed to take action after receiving this email;
• in 2016, the OT service carried out a second assessment of Mr X’s housing and again stated his property needed extensive adaptations and could not be fully adapted. The Housing Department failed to reconsider Mr X’s banding in light of this report and its own Housing Allocations Policy;
• in 2016 again, Mr X submitted another housing application form with medical evidence requesting his priority banding was increased. The Housing Department informed Mr X that he remained in Band B; and
• in 2017, Mr X made a further request that the Council consider his Banding. The Council did not increase his priority.
45. On each occasion, the Council failed to act in line with its Policy. All of this is fault.
46. The Council caused further delays in its responses to the charity which took on Mr X’s case in July 2017. In its response of September 2017, despite the charity specifying the Council was not following its Housing Allocations Policy, the Council failed to increase Mr X’s priority in line with that policy. The Council only reviewed its decision and increased Mr X’s priority after the charity threatened the Council with judicial review. And it still failed to backdate Mr X’s priority date to 2013, which was when it first became aware Mr X needed rehousing. As a result, Mr X was caused unnecessary time and trouble when he had to come to the Ombudsman.
47. As a result of the faults caused by the Council, Mr X remained living in a property which was not suitable to meet his needs. This caused a vulnerable adult prolonged distress.
48. Following the involvement of the Ombudsman, the Council offered to backdate Mr X’s Band A priority to May 2013. This is an appropriate action to take. However, it does not remedy the prolonged, avoidable injustice it caused Mr X. The Council should make Mr X a financial payment to acknowledge the impact of the fault.
49. This should be for the period May 2013, when the Council should have become aware Mr X had Band A priority in line with its policy to January 2018, when it offered him appropriate accommodation. This is 4 years and 8 months.
50. In 2015, the average wait time in the Council’s area for a two-bedroom property in Band A was 1 year and 3 months. I have, therefore, taken this waiting time into account in calculating a financial remedy.
51. Between 2008 and 2017, the Council offered to make a number of adaptations to Mr X’s property. In 2018, it also offered Mr X a suitable property in older people’s sheltered housing. Mr X has refused these offers. I have taken this into account when considered the injustice to Mr X.

Failure to meet the requirements of the Public Sector Equality Duty

52. In its response to Mr X and the charity, the Council stated it no or little wheelchair accessible properties for a number of years and that households needing an adapted property were waiting longer than other applicants. The Council has not demonstrated how it is meeting its public sector equality duty in relation to the provision of properties suitable for disabled applicants. This is fault.

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Agreed actions

53. Within one month of the date of the final decision the Council has agreed to:
• apologise to Mr X for the significant delays in awarding him Band A priority in line with its Housing Allocations Policy;
• pay Mr X £4,100 to remedy the prolonged and unnecessary injustice he experienced; and
• pay Mr X £300 to remedy the time and trouble he experienced in having to take his complaint to the charity and the Ombudsman.
54. If Mr X agrees to move from his property, the Council should put right the work Mr X carried out to the doors, so he could get through them in a wheelchair, without cost to Mr X.
55. Within three months of the date of this final decision, the Council has agreed to demonstrate how it is meeting the public sector equality duty when providing suitable accommodation to disabled applicants.
56. The Council will provide the Ombudsman with evidence it has carried out these recommendations.

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Final decision

57. There was fault causing injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman