Summary: There was fault by the Council. The Council’s guidelines on priority transfers did not explain clearly what the Council’s officers felt was a like for like transfer. The Council also did not clearly document its reasons why it felt Miss B was not at sufficient risk to exercise discretion to go against its policy to speed up her transfer. The injustice to Miss B is minimal, as it is likely the outcome would have been the same and the Council did make her a reasonable offer, which she refused.

The complaint

1. The complainant, whom I shall refer to as Miss B, complains the Council has delayed offering her a priority housing transfer. She also complains the Council has not offered her a suitable ‘like for like’ offer of housing.
2. Miss B also complains the Council officers are biased against her and have made unprofessional comments about her.

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What I have investigated

3. 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)
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

5. I read the papers put in by Miss B and discussed the complaint with her.
6. I considered the Council's comments about the complaint and any supporting documents it provided.
7. I gave the Council and Miss B the opportunity to comment on my draft decision.

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What I found

Key facts

8. Miss B lived in a two bedroom first floor flat. She complained to the Council about anti-social behaviour from her neighbour. The Housing Ombudsman considered this complaint.
9. On 29 March 2018 Miss B told a Council officer about an incident with her neighbour on 23 March 2018. The notes say the officer told Miss B she may be able to get a priority move to a ‘like for like’ property. The notes record that Miss B asked if the property would have a garden like she has now and the housing officer said they could not guarantee this.
10. Miss B confirmed the areas she would consider a move to on 16 April. Miss B said that she would like a 2 bedroom property with a garden.
11. Miss B filled out a priority move form on 8 May 2018. The housing officer said the reason for the move was ‘an altercation between Miss B and her neighbour’s sons friends and threats made to her. The police have told the Council that Miss B was scared to go home and she clearly perceives the risk as high’.
12. Miss B made an official complaint on 30 May 2018, which included her complaint that the Council had not offered her a move. The Council responded on 20 June 2018. This complaint was not upheld. The Council said that its officers had advised her in April 2018 that she might have to wait for 4-6 months, as the most recent applicants had but it depended on the properties which became available. The Council said it could not offer her two empty houses as the Council would only offer a flat, which was ‘like for like’.
13. The Council responded to her stage 2 complaint on 4 July 2018. The Council said that due to the urgency of the move it would offer a like for like property i.e. a flat. However, it could not consider her request for a garden.
14. On 18 December 2018 the Council offered Miss B a two bedroom ground floor flat. Miss B complained on 20 December 2018 the flat was not ‘like for like’ as:
• The location was in the same area as she was living now and under the policy a priority transfer should be away from the local area.
• The location was not one of the areas she had agreed to.
• The accommodation was not like for like. It did not have private garden like her existing flat, it was smaller and it was on an estate.
15. The Council wrote on 19 January 2019 to Miss B, to tell her that as she had refused the offer of a priority transfer it would not make any further offers and cancelled her application.
16. Miss B made a second official complaint about the property offered to her. The Council did not uphold her complaint. It considered the property offered was habitable and would not consider her request for a garden when considering if a property was ‘like for like’. On 3 June 2019 the Council confirmed it would make one more offer of a priority move in recognition of Miss B’s continuing complaint. The Council confirmed the areas Miss B would consider, that it would offer a two bedroom flat and that a garden would be a secondary consideration.
17. Miss B has said that she is still living in fear and her children suffer everyday, as if they hear a noise they think someone is coming into their home. Miss B wants compensation for the stress, anxiety and depression the Council has caused to herself and her family.
18. Miss B says that she had to move out in March 2018, while pregnant with a small child for a month, so for that month was paying utilities and rent for 2 properties. However, the report from the housing Ombudsman says that she moved in with her parents for that month.
19. Miss B moved back into her flat on 6 June 2018 and the Council fitted some safety measures including a plate over the letterbox, laminate film on the front door window and a door chain.
20. The Housing Ombudsman’s report says that between March and September 2018 Miss B reported seven incidents of noise nuisance from the neighbour. A sound level meter installed for 10 days in October 2018 reported no noise events. The Housing Ombudsman considered Miss B’s complaint about the Council’s investigation of anti social behaviour. It found the investigation of her complaint against her neighbour was mostly effective and did not consider there was a link between the Council’s actions and the impact on her household’s health.
21. The Council has sent me a list of the complaints made by Miss B against her neighbour. The complaints were about noise nuisance, a trampoline, parking and one complaint about her neighbour being abusive to Miss B’s visitors. The Council said there was no evidence to show Miss B was at risk of serious harm.
22. Miss B has now moved. She arranged the move herself via a mutual exchange in Autumn 2019.

Council’s priority transfer policy

Housing Allocations scheme 2015

23. The scheme says that ‘priority transfers will only be granted on a like-for-like accommodation basis for urgent reasons’. It goes on to say the allocations scheme does not apply where the Council agrees a priority transfer.

Housing Allocations scheme from 1 July 2018

24. The scheme says that ‘priority transfers will only be granted on a like-for-like accommodation basis for urgent reasons’. It goes on to say the allocations scheme does not apply where the Council agrees a priority transfer.

March 2019 work instruction to officers on priority moves

25. The Council has said that in March 2019 it introduced new documents and guidance to officers on priority moves.
26. Initially officers send a standard letter to applicants advising them that:
• The request for a priority transfer is agreed.
• Under the policy applicants will get one offer of alternative accommodation only on a like for like basis. If the applicants refuses the offer, the Council will remove priority transfer status.
• Like for like is as a property of similar size and type, not an identical property. For example, no consideration will be given to the existence of a garden, whether the property is situated on a main road or an estate etc. This is to maximise the opportunity for a speedy allocation to reflect the urgency of the move.
• The only criteria to be used apart from the size and type of property is the broader geographical area, taking particular note of any police recommendations or there are medical requirements which dictate the appropriate floor level/access arrangements.
27. The March 2019 work instruction to officers includes the statement ‘once an offer of like for like accommodation has been made, if the offer is refused and the refusal is deemed to be unreasonable, then notification is sent to the tenant’.

My analysis

Complaint about bias and discrimination

28. The Council offered Miss B a priority transfer.
29. Miss B has complained about the attitude of officers and comments they have made to her, she accuses them of bias and discrimination. The Council has commented to me in its response to my enquiries that it ‘gave Miss B the benefit of the doubt in accepting her request for a priority transfer’. I can see that to Miss B, these comments make her feel that officers do not believe her and this makes her feel the Council officers may not be treating her fairly. If Council officers believe that Miss B was not or is no longer entitled to a priority transfer they should put this formally in writing to Miss B.
30. The Council has said in internal emails the decision to offer the priority transfer was ‘borderline’. I do consider this is a much more suitable way of wording its view rather than ‘giving her the benefit of the doubt’.
31. Miss B complains that a Council officer called her selfish and her behaviour inappropriate in a telephone conversation. I understand her concerns but I cannot reach a view on what an officer said in a private telephone conversation that I was not listening to.
32. I have seen an internal email from a housing officer which says ‘I am actually hoping that when Miss B’s turn comes up the property will include a garden’. Further emails then say ‘the trouble is there aren’t that many two bedroom flats with gardens, so chances are whatever we offer will not have a garden’.
33. I can see no evidence that Council officers are biased or have discriminated against Miss B. There is evidence the language used by Council officers has, at times, not helped Miss B to feel she was fairly treated. But, there is also evidence that officers have ensured they told Miss B clearly of the type of housing offer she is likely to receive. I can understand that Miss B does not want to hear that she is unlikely to get a garden but this is not bias or discrimination against her as this is in accordance with the Council’s policy for all applicants.

Complaint about location of housing offered

34. Miss B complained about the location of the property the Council offered. The Council’s written policy at the time did not specify the location the offer should be made in, although an officer told Miss B she would be expected to transfer away from the local area for her safety. The property offered to Miss B was not in one of her preferred areas. However, I am not convinced that it was wrong of the Council to offer her the property as it was 2 miles away from her current home, in a village, with an area of forest in between. So, I consider that it was far enough away from the local area for her safety and there is no evidence of fault on this point.

Complaint about delay and housing type offered

35. The Council’s policy when Miss B refused the first offer of accommodation did not specify she would only be given one offer. The Council has now clarified this in its new guidelines. It has also said it will make Miss B another offer of accommodation.
36. Miss B complains the offer of accommodation was not like for like as it was smaller, did not have a garden and was on an estate. In May 2018 the Council’s guidelines did not explain what ‘like for like’ meant. It is clear the Council’s view in her case is that like for like means she would only be offered a two bedroom flat, but would not take into account whether the flat had a garden or the size of the flat.
37. The Council’s allocations policy does not discriminate between property types, so Miss B would be able to bid for both 2 bedroom flats and houses. The priority transfer guidelines are separate to the Council’s allocations policy. In addition, the Council has said that the housing association has a policy of assisting flat residents to move to houses, so Miss B has increased priority when bidding for a house compared to a flat.
38. The Council’s current policy says that it will not take into account the presence of a garden or room sizes to ‘maximise a speedy allocation’. So, the aim of the priority transfer is to ensure a quick move. Restricting the offers to a particular property type (flat or house) in a way that allocations do not, prevents applicants from getting a quick move by reducing the number of suitable properties.
39. The Council said the priority transfer scheme was not intended to be a means for residents ‘improving’ their accommodation as this would offer an unfair advantage when compared to other residents. The purpose of the transfer was purely to ensure safe accommodation away from any threat to the applicant. The Council said ‘while the type of accommodation had to be a match other aspects were not considered essential to ensure that an alternative property could be found as quickly as possible’. Miss B has sent me a copy of an internal email she has received, in which a housing manager says ‘a house is absolutely out of the question’.
40. The Council said that if an applicant needed to move out immediately then the Council would accept a homeless application from them and place them in temporary accommodation. The Council said that Miss B did not advise the Council she wanted to take this approach.
41. There is evidence of administrative fault by the Council. The Council’s policy on priority moves did not explain clearly what applicants could expect until March 2019. I can see the Council has now improved its communication and priority transfer housing allocation guidance so applicants are told by letter that like for like is a property of similar size and type, not an identical property. It also explains the Council will only make one offer and the only other criteria is the broad geographical area I.e. away from the applicant’s current home.
42. The Council is entitled to set its own policies. In Miss B’s case this policy has not achieved its purpose, she eventually arranged her own move after 1 and a half years. She had to choose between waiting in potentially unsafe accommodation or moving to hostel accommodation with young children. In the end, she arranged her own transfer.
43. All the evidence shows the Council, once it had granted Miss B a priority transfer, then took the view that her case was borderline. So, it refused to consider her for any other property than a flat, as shown by the housing managers email. The Council was rigid in applying an undocumented interpretation (at the time) of the like for like policy.
44. I understand Miss B felt unsafe in her home. Luckily there were no further incidents when the police were called but in leaving her in that situation carried a risk. I believe the Council’s view that Miss B was not at risk of significant harm meant that it did not consider exercising discretion to move her to another property type.
45. The Council has said that it did not consider moving Miss B to a house, as this would be unfair to other people waiting for a house, as she would ‘improve’ her property type. However, she is entitled to bid for a house under the current allocations guidelines and indeed has greater priority when bidding for houses. I cannot see any evidence that officers weighed up these factors when refusing to consider her for houses as well as flats.
46. The Council has said that Miss B’s choice of location limited her offers. I accept this is the case, but I cannot see any evidence officers assessed (at the time) whether the property types she wanted were likely to come up in the areas she had chosen. Miss B may have chosen to wait, but if she had this information at the time it would have been an informed decision.
47. Officer’s did not make a written risk assessment of the situation, it appears they thought Miss B’s case was borderline and she was not to be allocated a house under any circumstances. In Miss B’s case, she and her two young children did not come to physical harm. But, in another situation, the outcome could have been different and it is worrying that the Council did not consider what could have happened if the situation had escalated. I consider the Council’s failure to thoroughly consider and document the reasons why it did not think she was at sufficient risk to exercise discretion is fault. If the Council did not consider she was at risk, then it is unclear why it agreed to a priority transfer.
48. I now have to consider what injustice has been caused to Miss B.
49. Miss B said that she had to pay 2 sets of rent and utility bills for a month, when she had to move out. However, the evidence I have seen said that she moved in with her parents rather than to a separate property. So, I have not seen any evidence of bills or rent that should be refunded.
50. Miss B also wants her stress to be recognised and a financial payment made.
51. There was fault by the Council. Its formal policy at the time was unclear. But Miss B was clearly told at the time she would only be offered a flat, that may not have a garden and given the option to select areas she would consider. She was also given the option of making a homeless application if she needed to move straight away. So, I cannot say she was unaware of the situation, even if the Council’s formal policy was initially unclear. The Council has remedied this already, by sending letters explaining its policy. So, I do not consider this caused her any injustice. Clearly Miss B was under stress from her neighbour and the limited options available to her. But, the Council did clearly outline the options to her so the unclear policy did not affect the way the Council dealt with her priority transfer.
52. There was also fault in that the Council did not document, at the time, the reasons it did not exercise discretion to consider her for a house to speed up her transfer. The Council has given a number of reasons, in its replies to my enquiries, why it did not consider other options. The main reason seems to be that it felt her case for a priority transfer was ‘borderline’. Miss B came to no harm and the Council’s is now able to say, with hindsight, this was an acceptable decision to take. It does worry me that the risk involved to Miss B and her children was considerable, if the Councils view had been incorrect. I do consider that if the Council keeps its restrictions on property type that will increase the time taken for a priority transfer it should put in place procedures to ensure officers document in writing that they have considered that the risk to the applicant is not a reason to exercise discretion to consider other options (area, property type, temporary accommodation other than a bed and breakfast).
53. In terms of the injustice to Miss B, the Council made her a suitable offer in December 2018. And the Council’s decision that she was not at risk of physical harm by waiting that length of time was, in hindsight, correct. So, I do not intend to recommend a financial remedy for Miss B. I do recognise that she was under a huge amount of stress during the wait and that the Council’s priority transfer process did not help her and her children.

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Agreed remedy

54. The Council should revise its current priority transfer guidelines to ensure that it provides a transparent scheme, including details of how officers will ensure that the risk to applicants in waiting for a move is acceptable, within two months of the date of the decision on this complaint.

Final decision

55. I have completed my investigation of the complaint. There was fault by the Council and I consider the Council should take the steps in the remedy, outlined above, to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman