Royal Borough of Kensington & Chelsea (19 002 367)

Category : Housing > Allocations

Decision : Upheld

Decision date : 31 Oct 2019

The Ombudsman's final decision:

Summary: Miss X complains about the Council’s handling of her housing application. She says the Council has not properly considered her health and safety because it has decided she is suitable for a property within a lifted building. She also complains the Council will not let her bid on three-bedroom properties and does not assign appropriate accessible categories to its properties. The Ombudsman finds fault with the Council for failing to properly consider whether properties within lifted buildings are suitable for Miss X. However, the fault did not cause any injustice. We do not find fault with the Council for its other actions.

The complaint

  1. Miss X is on the Council’s housing register and is eligible to bid on two-bedroom, category C properties. Miss X says the Council has assessed her as being suitable for properties in lifted buildings. Miss X complains about the following:
  • The Council has not properly considered her health and safety by saying she is suitable for a property within a lifted building. Miss X says she is cannot leave the building safely if there is a fire or if the lift is broken.
  • The Council keeps offering her properties in an area where she cannot live because of the risk of domestic abuse from an ex-partner.
  • The Council assigns inappropriate categories to properties. Miss X says the Council assigns accessible properties to category F, instead of C or E. This means she misses out on properties which she feels are suitable for her needs.
  • The Council previously offered her a three-bedroom property but now won’t allow her to bid on three-bedroom properties even though she will become eligible for three-bedroom properties in January 2020.
  • The Council will not refer her to Hammersmith and Fulham Council.
  1. Miss X is represented by her sister, Miss A.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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 considered the information provided by Miss X.
  2. I spoke with Miss A and considered the information she provided.
  3. I made enquiries with the Council and considered the information it provided.
  4. I sent a draft decision to Miss X and the Council and considered their comments.

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What I found

London Accessible Housing Register: a good practice guide for social housing landlords

  1. The Accessible Housing Register (AHR) is not a stand-alone register of accessible housing and people who need it. Instead, it is a way of storing and displaying information about whether a property has level access, has steps, or has any adaptations. Councils assign categories to properties which are used in adverts to tell applicants about the accessibility features of a property.
  2. The good practice guide sets out the design features which are used to decide the category of a property. Each property must meet every design feature or space standard to be awarded that category.
  3. The categories are:
  • A – Wheelchair accessible throughout
  • B – Wheelchair accessible essential rooms
  • C – Lifetime homes (designed to meet the space standards of lifetime homes. Main features include a level approach/entrance, and wider doorways)
  • D – Easy access
  • E – Step free
  • E+ – Up to six steps to the home
  • F – General needs
  1. For category C properties, the following features must be met:
  • Path/ramp gradients: if ramp section is less than 5m, then max gradient is 1:12. Ramp sections longer than 5m cannot be steeper than 1:15. Ramp platforms must also be suitable.
  • Communal lifts: minimum of one lift if the property is not on the ground floor.

Steps to the property door: 0.

  1. The Council uses the good practice guide to categorise the accessibility of its social housing stock. The Council also said it considers the surrounding areas of the home and whether it has an impact on accessibility. For example, if the pavement leading to the property is very steep.
  2. The guide does not set out a maximum floor level for accessible accommodation where a property is served by a lift.

Housing Allocation Scheme (February 2017)

  1. The policy sets out the rules under which social housing is allocated. It sets out how the Council awards points to households. Section 4 of the policy outlines how the Council prioritises households.
  2. The Council can give ‘supporting health and independence’ priority to households where, in the current home, a disability or long-term health condition has a substantial impact on the independence of the applicant. The Council will only award this priority when a move to a more suitable property will have a substantial positive impact upon the person’s ability to enter and leave their home, or to access essential facilities within the home.
  3. The Council runs a choice based letting scheme. This means households may bid for properties they feel are suitable for their needs. The Council will offer the property to the bidder with the highest priority points first.
  4. Section 7.6 notes all properties advertised on the choice based letting website will have an AHR category. It also states the Council will ensure properties with accessible housing categories are prioritised to applicants with an assessed need. This ensures accessible properties are let to people who need them. This means a resident with an assessed need for accessible housing will be considered for an available accessible property before residents without such needs, even if the resident with the accessible need has less points.
  5. Section 6.4 outlines how property sizes are worked out. It notes the Council will allow:
  • one bedroom for the applicant and their partner;
  • one bedroom for every two children of the same sex, aged up to and including 20; and,
  • one bedroom for a child of the opposite sex, aged over ten.
  1. Applicants may only bid for the size of property the Council has identified, unless permission is given to bid on larger or smaller properties.

Background

  1. Miss X has two children under the age of ten. Her daughter will turn ten in January 2020. Miss X has medical needs and mobility problems. Her sister, Miss A, is her main carer.
  2. In December 2015, Miss X submitted a housing application to the Council. The Council assessed her application in March 2016. The Council accepted Miss X’s current property had a negative impact on her independence. The Council therefore awarded her ‘supporting health and independence’ priority points.
  3. The Council recommended Miss X was suitable for step free properties with wider doorways and corridors. These are category C properties on the accessible housing register. The Council also noted she was eligible for a two-bedroom property.

What happened

  1. In March 2016, the Council contacted Miss X to offer her a three-bedroom property. The Council said this was an exceptional offer as it had an excess of three-bedroom properties at the time. The Council also noted it would provide Miss X’s family with suitable housing long term and mean the accessible property would not go to a household with no accessible housing needs. The Council said it told Miss X if she declined the offer, she would go back to only being able to bid for two-bedroom properties.
  2. Miss X declined to see the property. She said the property was in an area where her ex-partner lived. Miss X said she experienced domestic abuse with her ex-partner. The Council accepted this, and Miss X suffered no penalties for turning the property down. The Council said this was the only offer of accommodation it has made to Miss X.
  3. In February 2017, the Council wrote to Miss X to confirm she still had priority points for ‘supporting health and independence’ and that she was eligible to bid on two-bedroom category C properties. The Council said category C accessible properties rarely become available. The Council therefore encourages applicants to bid for properties outside their AHR category.
  4. The Council confirmed Miss X has placed bids for two properties through the Council’s choice based lettings website. One bid in March 2018 and another in August 2018. The Council said Miss X was not considered for either of these properties because her assessed accessibility category did not match the accessibility of the properties.
  5. Miss X complained about this because she felt the property she bid for in August 2018 was suitable for her. Miss X said this was because the property could be accessed by a step free route.
  6. The Council explained its occupational therapist had visited the property and noted the following:
  • One access to the property was by a steep slope down from the pavement, with a single step at the bottom.
  • One access was by stairs down from the pavement (several sets of steps, one with 10 steps, one with 12 steps, and one with 14 steps).
  • One access was by slope with gradient of 1:10.
  1. The Council also said it was aware there was step free access by another access. However, the access was limited as it would be restricted by poor weather or poor lighting. The Council said it could not rely on this access route and therefore decided the property was not accessible.
  2. Miss X said the Council has not properly considered her health and safety because it said she was suitable for a property within a lifted building. The Council said it would only recommend properties up to a maximum of the fourth floor, if there is a lift, for applicants with mobility issues. The Council said this was because ground floor accessible properties are very scarce and because the London Ambulance Service will only carry people up to the fourth floor. The Council also said social landlords would have a suitable fire evacuation policy and fire safety measures.
  3. The Council said while Miss X did have mobility issues when it completed its assessment in 2015, she could mobilise with crutches and use public transport. The Council said because of this, it was reasonable to consider she could descend stairs in an emergency. The Council said it did not have any evidence to suggest otherwise. The Council said it would be happy to reassess Miss X.
  4. The Council also said Miss X could bid on any properties that matched her AHR category. Therefore, she could decide whether the floor of an advertised property was manageable. The Council said if Miss X identified a property in another category she would like to be considered for, it can arrange for an occupational therapist to assess the suitability of the property for her.
  5. The Council confirmed it has recorded the areas Miss X cannot live in on her application. The Council said she will not be offered any properties in those areas. The Council also said it would continue to review Miss X’s request for a three-bedroom property.
  6. Miss X said she would like to move to be closer to her sister, Miss A. Miss X asked the Council if it could refer her to Hammersmith and Fulham council. The Council explained it could not refer Miss X’s housing application because she did not meet the qualification criteria for Hammersmith and Fulham’s allocation scheme and housing register.

Analysis

AHR category C recommendation

  1. In March 2016, the Council assessed Miss X as being suitable for AHR category C properties. This means she has priority for any properties within this category. It is recognised that properties within this category are rarely available and for this reason, the Council encourages applicants to bid for properties outside their AHR category.
  2. The evidence suggests Miss X has done this because she made two bids for properties outside her AHR category. Unfortunately, her bids were not considered by the Council because it her accessibility needs did not match the properties accessibility facilities.
  3. I do not find fault with the Council for this. This is because the Council’s allocations policy states that properties will be offered to those who need it. This means the Council will first offer the property to an applicant who has been assessed as needing that category property. If the property is declined, only then will the Council consider other bids, including those who need a more accessible property.
  4. I accept it seems contradictory for the Council to encourage applicants to bid for properties outside their AHR categories only for the bids to fail because the property does not meet the applicant’s accessibility needs. However, it is not unreasonable for the Council to encourage this because there will be situations where a property may be suitable.
  5. The Council has also stated it will send an occupational therapist to consider the suitability of any property Miss X identifies as suitable for her needs. I find this approach to be reasonable in the circumstances.

Two-bedroom eligibility

  1. The evidence is clear the Council had previously offered Miss X a three-bedroom property. However, it is also clear the Council has made it clear this offer was an exceptional offer due to the surplus of three-bedroom properties available at the time.
  2. The Council can use its discretion to allocate properties outside its housing allocations policy. I cannot find fault with the Council for its decision to exercise discretion to offer Miss X a three-bedroom property in March 2016.
  3. Currently, Miss X is only eligible for a two-bedroom property. Once Miss X’s daughter turns ten in January 2020, she will be become eligible for a three-bedroom property. This is in line with the Council’s housing allocations policy.
  4. Miss X says the Council should allow her to bid on three-bedroom properties now. However, the Council must allocate properties in line with the allocation policy. The Council has so far decided not to exercise any discretion to allow Miss X to bid on three-bedroom properties. I cannot find fault with the Council for this.
  5. Further, I note the Council has said it will continue to review Miss X’s request for a three-bedroom property. This is appropriate in the circumstances as it shows the Council is not fettering its discretion.

Assigning inappropriate AHR categories to properties

  1. Miss X has provided a specific example of a property she feels the Council has inappropriately categorised. Miss X feels the property should be a category C or E, rather than category F.
  2. The Council has explained the various access points to the property were either too steep or contained steps. The Council noted there was another step free access point, as identified by Miss X, but decided that access would be too dependent on conditions. The Council said for these reasons, the property did not meet the accessible criteria as set out within the good practice guide.
  3. The evidence suggests the Council has considered all relevant information when it made its decision. Therefore, I cannot find fault with the decision itself because it was made properly.

Properties within lifted buildings

  1. The Council said it considered properties within lifted buildings up to the fourth floor were suitable for applicants with mobility issues. This goes beyond what is set out within the good practice guide as the guide does not set out a maximum floor level for accessible properties within lifted buildings.
  2. The Council said it was of the view Miss X could manage stairs in an emergency because she could mobilise with the help of a crutch and used public transport. The Council also said it did not have any evidence Miss X would struggle to use stairs.
  3. However, the Council has assessed Miss X as needing a category C property. The Council also decided Miss X needed to move from her current property because she cannot safely manage the steps outside her property. Therefore, given this, I do not agree with the Council’s position that there was no evidence Miss X would struggle to use stairs.
  4. I am not satisfied the Council properly considered Miss X’s circumstances and whether properties within a lifted building are suitable for her needs. This is fault.
  5. Whilst I have found fault with the Council for not properly considering Miss X’s circumstances, this does not mean the Council cannot house applicants with accessible needs within lifted buildings. The Council is entitled to make a decision but it must be able to demonstrate it had considered the circumstances of each case before it made the decision.
  6. However, the fault identified has not caused Miss X any injustice. This is because the Council uses a choice based letting system. This means Miss X can decide whether to bid on a property within a lifted building. Therefore, she can decide whether the property is suitable for her needs. Further, the Council has not offered her any properties within a lifted building and so Miss X has not been disadvantaged by the fault identified.

Referral to Hammersmith and Fulham council

  1. The Council has explained why it cannot refer Miss X to Hammersmith and Fulham council. The rationale provided by the Council is reasonable. Therefore, I do not find fault with the Council’s decision.

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Final decision

  1. I find fault with the Council for failing to properly consider whether properties within a lifted building are suitable for Miss X’s needs. However, the fault did not cause any injustice to Miss X. I do not find fault with the Council for its other actions. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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