London Borough of Southwark (18 014 257)

Category : Housing > Allocations

Decision : Upheld

Decision date : 08 Aug 2019

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to properly consider his application for housing. The Council failed to arrange for Mr X’s property to be inspected by its Environmental Health department and failed to consider whether the standard of his accommodation would entitle him to additional priority. The Council should pay Mr X £250 for the uncertainty this caused and take action to improve its services.

The complaint

  1. Mr X complains the Council failed to register his housing application in January 2017. Mr X says he had to make a further application and the Council delayed registering this and delayed considering his housing needs. Mr X also says the Council failed to properly assess the impact the condition of his property was having on his health. Mr X says his property is damp and this is having an impact on his physical and mental health.

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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. 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. 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 Mr X and considered the information he has provided to the Ombudsman. I have also considered the Council’s response to my enquiries which includes its responses to Mr X’s complaints.
  2. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

Allocation of social housing

  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.
  4. Statutory guidance on the allocation of 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. 21 days is suggested as reasonable;
    • 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.
  5. The Council’s allocations policy places applicants in four priority bands numbered one to four. Applicants are prioritised within each band using “priority stars” based on the circumstances of each household.
  6. The Council awards “Band 2” priority to “private sector tenants who are required to vacate their home as a result of enforcement action by the Local Authority”. Band 2 is also awarded to “applicants who lack… essential facilities” such as a toilet, kitchen or hot water.
  7. The Council awards “Band 3” priority to “applicants with a moderate medical priority where there is a clear objective need for a move, because they include a person (or persons) whose illness or disability is either made worse by their present living conditions, or where a move to more satisfactory accommodation is likely to result in an improvement to health. However, the housing conditions directly contribute to causing serious ill health”.
  8. The Council’s policy says review requests must be received within 21 days of a decision being made. The policy says a decision on review will be made within 28 days of the review request.

Housing Act 2004

  1. The Council must inspect “any residential premises” in its area where it receives a complaint about the condition of a property. (Housing Act 2004, section 4(2))
  2. The Housing Act 2004 says and risk to health and safety identified within residential premises should be categorised as either a “category 1” or “category 2” hazard.
  3. Where a council identifies a category 1 hazard it must serve notice on the property owner requiring them to carry out necessary work to the property.
  4. Where a council identifies a category 2 hazard it is not under a duty to serve a notice although it has the power to do so if necessary. Usually a council will write to a property owner asking them to carry out necessary work to the property within a set timescale. If work is not carried out the council will consider whether or not to serve a notice on the property owner.
  5. The Housing Act 2004 only refers to “residential premises” and does not differentiate between private and social rented housing. Councils cannot take formal action against itself but must still carry out an inspection if it receives a complaint. Councils can take action against other social housing providers.

What happened

  1. Mr X was rehoused in a housing association property in November 2016. Mr X says within a few months of moving in he became aware of damp in the property. Mr X says reported this to his landlord but it didn’t carry out any repairs.
  2. Mr X says he applied to the Council for housing in January 2017. The Council says it has no record of Mr X making an application for housing.
  3. Mr X applied to the Council or housing again in January 2018. The Council says the application wasn’t processed until 22 May 2018 due to increased demand on its services during this time. The Council says it wrote to Mr X in May 2018 requesting documents to support his application and it received these on 13 July 2018.
  4. Mr X provided a toxicology report which said Mr X had tested for high levels of “Ochratoxin A” and that exposure “can… come from inhalation exposure in water-damaged buildings.”. It said exposure “can lead to kidney disease and adverse neurological effects”.
  5. Mr X also provided copies of letters from his GP. In a letter dated 1 February 2018 Mr X’s GP said “we have investigated his symptoms with blood test and imaging which have all come back unremarkable”. The GP said they had told
    Mr X “that there is possibly a psychological element contributing at the very least”.
  6. In a second letter dated 10 May 2018 Mr X’s GP referred to the toxicology report and said it “shows high levels of ochratoxin”.
  7. Mr X also provided a copy of a housing disrepair report he had commissioned from a registered Environmental Health Practitioner. This said “there are several matters which require actions by the landlord… The presence of mould and the dampness to the flooring is likely in my professional opinion to cause ill health in the form of respiratory and other breathing related complications. The general fatigue being suffered by the tenant is understandable as he is not currently sleeping in the bedroom but in the lounge due to the dampness and mould growth. The exposure to mould spores is detrimental to the tenant’s health and requires action to rectify the defects to the property”. The report contained photographs of Mr X’s property showing issues with damp.
  8. On 13 August 2018 Mr X complained to the Council about delays in dealing with his housing application. The Council replied on 17 August 2018 and acknowledged there had been delays in dealing with the complaint. The Council apologised and said it would write to him with a decision on his application within three to five working days.
  9. The Council’s medical advisor produced a report based on the evidence Mr X had provided. The medical advisor said “while I appreciate the current accommodation is not ideal, the evidence supplied does not provide compelling indications for a change of accommodation on medical grounds”. However, the medical advisor said the property should be referred to the Council’s Environmental Health department for “appropriate enforcement action upon the landlord”.
  10. The Council says it did not refer Mr X to its Environmental Health department because he was living in a housing association property. The Council says “this would not be the process as the Environmental Health Team would visit private landlords and not Housing association properties”.
  11. The Council wrote to Mr X in September 2018 to say he did not have a medical need to move. It placed his housing application in priority band 4.
  12. In October 2018 Mr X wrote to his local councillor. Mr X said he had been trying to resolve issues with mould and damp in his bedroom, kitchen and living room for two years. He said his health had been affected due to the condition of the property. Mr X said his neighbour in the flat below him was also affected by the property. Mr X’s councillor passed his complaint on to the Council.
  13. The Council wrote to Mr X in November 2018 to say Mr X may be entitled to additional priority within band 4 due to being employed. The Council asked Mr X to provided evidence of this employment. The Council acknowledged he was having issues with his housing be noted he was “taking the necessary steps to address the repair issues you have with your landlord”. The Council said Mr X should “continue to pursue this as there is little evidence that your accommodation is unreasonable for you to continue to occupy, particularly if your landlord is able to address the repair issues you have raised to your satisfaction (within reason)”.
  14. The Council responded to Mr X’s complaint on 18 November 2018 at stage 2 of its complaint procedure. The Council said it partially upheld the complaint due to delays in processing Mr X’s application. It said it had already acknowledged this in its response at stage 1 of its complaint procedure. The Council said Mr X could take his complaint to the Housing Ombudsman if he was unhappy with its response.
  15. Mr X submitted new medical evidence to the Council on 31 January 2019. The Council passed this to its independent medical advisors on 28 March 2019. The Council says the two month delay was due to “a backlog within the service which affected all applications being processed”.
  16. The Council said the medical assessment was completed on 2 April 2019. It says this did not result in a change in Mr X’s priority banding and it has written to inform him of this.

My findings

  1. I have investigated what happened since January 2018. I have not investigated how the Council dealt with Mr X in January 2017. If Mr X was unhappy with the way his housing application was dealt with at the time he could have raised a complaint.
  2. The Council has already accepted there were delays in processing Mr X’s housing application in January 2018. As a result of this it backdated his priority banding to the date of his application and apologised. There was a further delay of two months when Mr X submitted further medical evidence. This did not result in a change in Mr X’s priority banding so the delay has not caused him an injustice. However, I am concerned that there have twice been delays in the Council’s handling of Mr X’s housing application and that the Council has advised that others have been similarly affected.
  3. The Council is at fault for failing to refer Mr X to it’s Environmental Health department regarding the condition of his property. The Council is under a duty to inspect any residential property which may have category 1 or category 2 hazards. This is not limited to private sector housing but also applies to social housing including housing associations and the Council’s own stock.
  4. When the Council became aware of the issues with Mr X’s house it should have referred him to its Environmental Health department. The Environmental Health department would have inspected the property and decided whether any action was necessary against the landlord. Failure to make the referral and arrange an inspection was fault.
  5. The responsibility for ensuring the property is in a good state of repair lies with the landlord and so the Council are not responsible for any injustice to Mr X arising from the poor state of repair of the property. Mr X has also been able to seek legal assistance in taking his own action against the landlord.
  6. However, Mr X has been caused some uncertainty as a result of the Council’s failure to inspect his property. Based on the evidence Mr X provided in July 2018 there appear to be significant issues within the property. It seems likely the Council would have corresponded with the housing association and may even have served a notice. However, I cannot say how the housing association would have responded to this. In any case Mr X has been able to take his own action against his landlord regarding disrepair in the property.
  7. There is no fault in the Council’s decision to award Mr X Band 4 priority based on his medical needs. Although Mr X has provided evidence that his property is in a poor state of repair the evidence regarding the impact on his health is inconclusive. Mr X has provided a toxicology report showing he has higher levels than normal of a toxin which can be linked to damp housing. However, his GP has also said that blood tests and “imaging” results were “unremarkable”.
  8. However, there is fault in the Council’s policy as it does not allow the Council to take account of poor standard of social housing accommodation. The 1996 Housing Act requires the Council to give reasonable preference to people in “unsatisfactory” housing. The Act does not restrict this to private sector housing. Therefore, the Council should consider giving reasonable preference to social housing tenants living in unsatisfactory housing. As set out above the Council is under a duty to inspect all residential properties in its area including social housing.
  9. As a result of this the Council failed to consider whether Mr X might be entitled to additional priority on the Council’s register as a result of being in unsatisfactory housing. This has caused Mr X uncertainty.

Recommended action

  1. The Council should take the following action to remedy the injustice caused to
    Mr X as a result of the fault I have identified:
    • Apologise to Mr X for failing to properly consider his circumstances and refer him to its Environmental Health department.
    • Arrange for the Council’s Environmental Health department to visit Mr X’s property to inspect it for category 1 and category 2 hazards under the 2004 Housing Act.
    • Consider whether the Council should take action against Mr X’s landlord taking account of fact Mr X is currently taking court action regarding disrepair in the property.
    • Consider the report produced by the Environmental Health department and decide if Mr X should receive any additional priority on the Council’s housing register. The Council should follow the same process for considering housing applications from private sector tenants in unsatisfactory housing until it reviews its policy.
    • Pay Mr X £250 for the uncertainty caused as a result of failing to pass his case to its Environmental Health department and failing to consider his application for priority due to unsatisfactory housing conditions.
  2. The Council should take the above action as soon as possible and no later than 8 weeks from the date of my final decision.
  3. The Council should also take the following action to improve its services:
    • Review its housing allocations policy to ensure it awards priority to social housing tenants in unsatisfactory housing conditions.
    • Review processes for handling housing applications to ensure there are no significant delays. This should involve reviewing seasonal increases in demand to ensure sufficient resources are in place and having contingency measures for unexpected rises in demand on the service.
  4. The Council should carry out the above action within three 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 action 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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