Summary: The Council has no evidence it considered medical evidence provided by a housing applicant in support of his request for the Council to allow him to bid for three-bedroom properties. The Council failed to review its decision despite requests by the applicant, a Councillor and an MP. The Council has caused serious unavoidable frustration, distress and time and trouble for the applicant. The Council will apologise to the applicant, carry out a proper review and make a payment to him for the injustice it caused.

The complaint

1. Mr X complains the Council has refused to allow him to bid for three bedroomed properties. He says his son needs his own bedroom because of a medical condition. He also complains the Council failed to reply to letters he sent.

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The Ombudsman’s role and powers

2. 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)
3. 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 considered the complaint made by Mr X and discussed the complaint with him. I asked the Council for information and considered what it provided.
6. I gave Mr X and the Council the opportunity to comment on a draft version of my decision.

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What I found

Medical priority

7. Housing applicants can ask a council to review a wide range of decisions about their applications. Statutory guidance says an officer senior to the original decision maker or a panel not including the original decision maker, should carry out the review.
8. A council must make its own decision on a housing application. When considering medical priority, a council can take advice from an external medical adviser, but it must also take account of other medical information it receives.

The Council’s allocation scheme

9. The policy says a couple with two children aged under 10 need two bedrooms. It says it can offer a larger property on health grounds or when a member of the household needs their own bedroom for medical reasons. It says it will consider this on a case by case basis and seek advice from the District Medical Officer (DMO) and reports from social services.
10. The policy divides applications into four bands from A to D. It awards Band B for an urgent medical need where the current housing has a major adverse effect on the medical condition.
11. The policy gives an applicant the right to ask for a review on the facts the Council has considered. The applicant should ask for a review in writing within 21 days of the decision he disagrees with. The Council then must respond in writing within 56 days
12. Applicants who have an illness or disability made worse by their housing condition need to complete a medical self-assessment form. If the Council considers there is a serious medical condition made worse by the current housing, it asks the DMO to assess and make recommendations. The Council will consider the medical form and any supporting evidence from a GP, Hospital Consultant or Occupational Therapist. The DMO’s recommendation is not final, the Council will review it to ensure it follows the allocations scheme
13. The Council will tell applicants the result of the medical application in writing. If the applicant is not happy with the DMO’s recommendations he can ask for a review. The applicant needs to give reasons for asking for a review and can supply more information to support the review. A manager will consider the review and, if necessary, seek advice from the DMO. The Council will send a written decision on the review.

What happened

14. Mr X, his wife and their two young children, B and C, do not have their own home, they share one bedroom in a relative’s home. B is autistic. Mr X is registered on the Council’s allocation scheme. In September 2017 the Council awarded the application Band B- urgent medical need. The Council said Mr X needed 2 bedrooms.
15. On 11 May 2018 Mr X emailed Officer 1, a Rehousing Officer. He said B’s Consultant said B needed his own bedroom and wanted the Council to make him eligible to bid on 3 bedroomed properties. He said B would not let his younger brother C sleep in the bed. B hit, pushed and headbutted C and it was dangerous. Mr X attached B’s multidisciplinary assessment and a letter to the Housing Department from B’s specialist. The Council does not have a copy of the Specialist’s letter.
16. The Council does not employ a DMO. It contracts a company to carry out medical assessments. It refers to this company as the DMO. The Council asked the DMO for an opinion. The Council says it put Mr X’s request and his supporting documents on its Housing Needs database and the DMO has access to this.
17. On 24 May the DMO gave his opinion which was “(B) is only 4 and I don’t think an exclusive bedroom is essential at that age. I recommend that any offered accommodation has a double bedroom which could be informally screened to provide him and his sibling some independent space”. The DMO did not specify what information he had considered.
18. On 30 May 2018 Officer 1 emailed Mr X with the decision on his request. Officer 1 told Mr X what the DMO had said and said the Council had not awarded the application an extra bedroom. Mr X emailed Officer 1 to say he wanted to appeal the decision and asking how he could do this. Officer 1 told Mr X he could ask for a review but would need to say why he was unhappy with the DMO’s recommendation. Mr X said he would get more information from B’s Specialist and GP to help with the appeal.
19. On 16 July 2018 Mr X sent his appeal. Mr X sent the multidisciplinary assessment again; evidence he received disability living allowance for B; a letter from B’s school and letters from B’s GP and Specialist.
20. Mr X said B

• Pushed C, hit him and scratched him.
• Jumped on the bed for hours at a time
• Broke things
• Screamed day and night.

21. He said C is terrified all the time and none of the family get any sleep. He said he was concerned for C’s health and welfare.
22. The letter from the GP dated 9 July 2018 said B

• Would only sleep with Mr X
• Is constantly hyperactive and jumps on the bed for hours not letting anyone sleep
• Will suddenly scream cry or laugh hysterically
• Can get aggressive and angry then he breaks things, hurts himself and hits and headbutts others.
• Hits C, bites him, scratches him and pushes him out of bed
• Wakes up repeatedly during the night
• Does not let anyone turn off the bedroom light, if anyone dims it or turns it off, he will cry or scream.

23. The GP said B’s behaviour traumatises C. She said she was increasingly concerned as she had seen C that day with scratches on his face. She said B needed his own room to achieve his physical and development potential, become independent and not to disturb others or affect their well-being, particularly C.
24. The letter from B’s specialist dated 28 June 2018 said B was hyperactive with sleep difficulties, easily irritated and often aggressive to C.
25. He said B would benefit from his own bedroom because his autism meant he did not like his space invaded and can get agitated. He said it was difficult for someone to tolerate sharing a bedroom with B as he woke frequently, made high-pitched noises and may scream and cry. He also said B would not let Mr or Mrs X switch off the bedroom light. He said B hit C and his parents for no reason or trivial reasons. He said if B had his own room, he could do his daily activities at his own pace without causing emotional or physical harm to C and his parents.
26. Officer 1 asked the DMO for an opinion. On 30 July the DMO Said: “My advice of 24 May 18 remains my view. I will happily review this case in the future as their son’s development progresses.” The DMO did not specify what information he had considered. He did not refer to the information from the Specialist or GP or give any reasons he disagreed with their views.
27. On 16 August Officer 1 emailed Mr X and told him he had asked the DMO to reassess and asked the DMO if Mr X needed an extra bedroom. He told Mr X what the DMO said. Officer 1 said “following on from the DMO’s recommendation and all the information on file” the Council was satisfied his application should stay in Band B.
28. Mr X says he went to Councillor 1 for help and she emailed the Council on 19 August 2018. He says the Council did not reply until 9 October.
29. The Council says Mr X is mistaken. It says Councillor 2 made a member’s enquiry on 20 August and it responded on 30 August. The Council had not provided me with a copy of these emails.
30. The Council says Councillor 1 emailed on 26 September and it replied on 9 October.
31. The email from Councillor 1 explains the family’s circumstances and the DMO had said the family did not need an extra bedroom. She said the housing officer “has advised there is no appeal procedure”.
32. Officer 2, a Senior Rehousing Officer, replied to Councillor 1. He said the DMO had thoroughly considered the circumstances and provided advice. Officer 2 said: “this advice was taken into consideration as part of our overall decision making process and our decision is that a separate bedroom cannot be allocated specifically for (B) at present.” Officer 2 did not tell Councillor 1 there was a review process.
33. The Council said Mr X would wait longer for a three-bedroom property than he would for a two-bedroomed property.
34. On 10 October 2018 Mr X emailed officer 2. He disputed the DMO’s views. He said the DMO seemed to know more about B than his GP and Specialist who knew B well and said he needed a separate bedroom. He said both had told the Council about B’s aggressive behaviour but the DMO had not considered the dangers for B and C in sharing a bedroom. He asked if the DMO was waiting for an accident to happen before he would review. He said C had already been to the GP when B had hit him.
35. Mr X accepted he could wait longer for a three-bedroom property. He said if he moved to a two-bedroom, this would not reduce the risk to C.
36. Mr X wanted the Council to reconsider and to let him know what steps he could take to challenge the decision.
37. The Council did not reply. Mr X emailed Officer 2 again on 5 November 2019 to ask when he would reply and what steps he could take to escalate the matter. The Council did not reply. Mr X sent another email asking for a reply on 23 January 2019. He sent this one to Complaints Department but still did not get a response.
38. The Council says Mr X’s 3 emails are not on its databases. I have seen evidence Mr X sent them to the Council.
39. Mr X went to his MP. On 30 January 2019 the MP asked the Council to reassess. Officer 2 replied on 15 February. He told the MP about the recommendations from the DMO. He said: “Based on the above recommendation/s, we gave regard to it and to all the recent information describing Mr (X's) current circumstances. In this regard, Mr (X's) case has been thoroughly investigated and reassessed accordingly, and it has been decided that Mr (X) can only bid for a two-bedroom suitable accommodation.”
40. The Council tells me it did not treat Mr X’s email of 16 July as an appeal. It says medical assessments can be ongoing and it treated the email as further evidence. It says Officer 2’s emails to Councillors 1 and 2 give more details of the DMO’s advice and the Council’s decision making.
41. The Council says it has no separate evidence of its officers reviewing the DMO’s advice. It says the email it sent to Mr X on 30 May 2018 confirmed the Council accepted the DMO’s advice.

Analysis

42. The Ombudsman cannot criticise a decision a council takes without fault. In this case the Council’s decisions are affected by serious fault.
43. The Council must make its own decisions on the priority it gives to housing applications. It can ask the advice of the DMO, but the advice given is only one factor in its decision making.
44. The Council does not have the letter from B’s Specialist Mr X provided in May 2018. It is therefore likely the DMO took no account of it in his original advice. There is no evidence the Council itself considered Mr X’s medical application and evidence; it only considered what the DMO said. This is fault
45. The Council did not follow its own policy. The policy entitled Mr X to ask for a review of the DMO’s advice and for a manager to consider the review. Mr X asked for a review and went to a great deal of time and trouble getting evidence. The Council did not carry out a review. The same officer sent the additional information to the DMO and then sent the decision to Mr X. This is fault
46. Mr X provided medical evidence from B’s GP and Specialist. Both said B needed a separate bedroom for his own development and described the effect on C when sharing a room with B. The DMO has not met B nor assessed him, he has no access to B’s medical records. He had evidence from two medical professionals, one a specialist, closely involved with B. The DMO did not explain why he did not accept their advice and recommendations for a separate bedroom. The DMO remained of the view that an informal screen between B’s and C’s beds would provide some independent space. He does not explain how this would address the issue of B’s constant noise during the night and need for a light on all night. He does not explain how the screen would protect C from B’s aggression towards him.
47. The Council accepted the DMO’s advice and did not itself consider the professionals advice. The Council provided no reasons to Mr X to explain what account it took of the information he provided and why it agreed with the DMO. This is fault.
48. Councillor 1 asked the Council to reconsider. The Council still did not carry out a review. This is fault.
49. The Council told Councillor 1 the DMO had given the case thorough consideration. The Council has no evidence to support this statement. All it had was two very brief notes from the DMO.
50. On 10 October Mr X explained again why he was unhappy with the DMO’s recommendation and asked the Council to reconsider. The Council did not reply or review his application. This fault.
51. Mr X sent two reminders but still did not get a reply. This is fault. The Council says it no longer has these emails. This is further fault.
52. Mr X then went to his MP. The MP asked the Council to reconsider. The Council still did not carry out a review. This is fault.
53. The Council says its response to Councillor 1 gives details of its decision making. I do not accept this. It only says what the decision was. In replying to the MP the Council said it had given regard to all the circumstances and thoroughly investigated and reassessed Mr X’s case. These is no evidence of this. The evidence shows the opposite is true and the Council has only considered the DMO’s opinion.
54. The Council has caused injustice to Mr X and his family. Mr X went to a lot of trouble getting current medical information for B. These reports directly address how B’s Autism affects the family’s housing need. Two busy medical professionals took the time to write the reports. There is no evidence anyone has considered this information.
55. Mr X asked for a review in July 2018, the Council still had not done this, despite requests from a Councillor and an MP. This delay had caused injustice through frustration and uncertainty.
56. The Council caused further injustice to Mr X when it did not reply to his emails of October 2018, November 2018 and January 2019. Mr X went to more time and trouble going to his MP.

Agreed action

57. We publish guidance on remedies. Where a Council’s actions have caused avoidable distress, we usually recommend a moderate sum between £100 and £300. However, where the distress the Council caused is severe or prolonged, we recommend more. The Council’s actions caused distress to Mr X for more than a year. I consider this merits double the higher end of our usual range
58. We also recommend a payment of between £100 and £300 for time and trouble if the Council is at fault in the way it dealt with a complaint. For example, the Council did not deal with a complaint and the complainant had to go to an MP or Councillor before the Council dealt with the complaint.
59. To put matters right for Mr X the Council has agreed that within one month of my final decision it will:

• Apologise to Mr X.
• Pay Mr X £900 for the avoidable time, trouble and distress it caused him.
• A manager senior to Officer 2 will review Mr X’s application regarding band and bedroom need. The manager should take account of all the information and demonstrate this. The manager should address the advice and information given by the GP and Specialist; including the effect on C of sharing a bedroom with his brother. The written decision should tell Mr X how the Council has considered his application and reasons for its decision.
• The Council will send a copy of its reassessment and decision letter to Mr X to the Ombudsman.
• The Council will tell the Ombudsman what action it will take to ensure in future it deals properly with review requests about decisions it makes under its allocations scheme.

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Final decision

60. The Council is at fault and has caused injustice. It has agreed to provide a remedy for this. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman