Summary: there was fault in the way the Council assessed Mr X’s Housing Register application and priority band. On the balance of probabilities, Mr X would not have been rehoused by now if he had been awarded the correct band. As Mr X’s circumstances have changed since he made the application, the Council has agreed to take steps to review his housing needs and update his Housing Register application.

The complaint

1. Mr X complains that the Council did not award the correct priority band to his Housing Register application.

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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. 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

4. I have spoken to Mr X and considered the Council’s response to my enquiries. I have also referred to the relevant parts of the Council’s published housing allocations scheme.
5. I have written to Mr X and the Council with my draft decision and considered their comments.

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What I found

The relevant law

6. Every local housing authority must publish an allocations scheme that sets out how it prioritises housing applicants, and its procedures for allocating properties.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
7. 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))

8. Applicants have a right to request a review of a council’s decision about the priority band they have been awarded.

The Council’s housing allocations scheme

9. The Council’s current housing allocations scheme has been in force since November 2013. It applies to existing Council tenants who wish to transfer and new applicants who wish to join the Housing Register.
10. Eligible applicants who qualify to join the Housing Register are placed in one of four priority bands following an assessment of their housing needs. Band 1 is the highest priority band and Band 4 is the lowest.
11. The published allocations scheme sets out the criteria the Council use to decide on the applicant’s priority band.
12. For the purpose of this investigation, it is relevant to note that Band 3 includes:
• Someone who is homeless and the Council has accepted a duty to accommodate them under Part 7 of the Housing Act 1996 (duties to the homeless);
• Someone who is overcrowded, but not statutorily overcrowded as defined by Part X of the Housing Act 1985. (There is no definition of the term “overcrowded” in the published scheme)
13. Band 4 is the lowest priority band. It includes all applicants who do not qualify for one of the higher bands and:
• Applicants who are homeless but not owed a housing duty by the Council under Part 7 of the Housing Act 1996 (for example because they are not in priority need or are intentionally homeless).
14. Appendix B to the Council’s published scheme explains how the Council assesses the number of bedrooms a household needs. It defines a child as someone under the age of 16. It says a family with two children of the same sex aged under 16 is entitled to a two bedroom property. This is based on the two children under 16 sharing a bedroom. Although not explicitly stated, this implies that where there are two children of the same sex, but one is over the age of 16, they are entitled to separate bedrooms.
15. The scheme does not include any specific guidance about how officers should treat applications made by tenants following a relationship breakdown.

Mr X’s application

16. At the relevant time, Mr X and his wife were joint tenants of a Council flat which has two bedrooms and a living room. Their two daughters, who are 20 and 15 years old, lived with them.  
17. Mr X and his wife are in the process of getting a divorce.
18. In February 2018 Mr X applied to join the Council’s Housing Register. He applied as a single person and gave his address as the flat. Mr X did not declare any medical needs. He is self-employed and on a low income.
19. Mr X wants to move to his own accommodation. His daughters will stay in the flat with their mother. 
20. The Council decided Mr X qualified to join the Housing Register. It assessed the information he gave about his circumstances on the application form and awarded Band 4 priority. This is the lowest band in the housing allocations scheme.
21. Mr X considers the Council should have awarded a higher priority band – Band 3 - because the flat was overcrowded. Mr X daughters each have one bedroom and his wife slept in the living room.  So he had nowhere to sleep. He could not share a room with his wife because they are estranged. 
22. Mr X challenged the Council’s decision to award Band 4. He says he has little prospect of making a successful bid for accommodation in such a low priority band.
23. A manager in the Housing Solutions team reviewed Mr X’s case in March 2019. She understood at the time that Mr X’s flat had three bedrooms. She said he was not overcrowded and he did not qualify for a higher priority band. She said he may qualify for a “priority star” within Band 4 if he provided evidence to confirm he had been self-employed for the past nine months. She also suggested Mr X could explore other housing options. She gave him details for the Council’s housing advice line.
24. Mr X contacted the Council to point out that the flat had two bedrooms not three. In August 2019 the Council investigated his complaint at Stage Two of its complaints procedure. It partly upheld his complaint because of the error about the size of the property in the review process. It now realised the flat had only two bedrooms. flat. But it says this made no difference to the decision that Mr X did not qualify for Band 3 due to overcrowding.
25. Mr X says he could not remain in the flat and so he sofa-surfed with friends. Since February he told me he has been homeless and sleeping in his car.
26. The Council suspended Mr X’s Housing Register application when he told an officer he was no longer living in the flat and was staying with a friend outside the Southwark area. The Council suspended his application because he is no longer at the address on the application form. It questioned whether he still has a local connection with the borough. It says it will reassess his application when Mr X provides more information about his current circumstances.
27. In response to our enquiries, the Council said its pre-2013 housing allocations scheme used to make specific provision for rehousing in cases of relationship breakdown. But this was removed from the current scheme because of the increased demand for social housing and the reduced supply of properties.
28. The Council says when someone remains a joint tenant of a property following a relationship breakdown, it is a matter for both tenants to work out suitable sleeping arrangements. They both have an equal right to occupy the property unless one party terminates the joint tenancy or there is a Court order. The Council does not consider someone in this situation is eligible for overcrowding priority.
29. Mr X recently surrendered his joint tenancy. The Council said it is willing to advise Mr X about how to find private rented accommodation if he contacts the housing advice service.
30. The feedback page on the Council’s Homesearch website shows that single applicants with Band 3 priority wait, on average, 2½ years to be allocated a Council bedsit. The average waiting time is more than three years for one bedroom properties.

My analysis

31. The Council’s policy says it will award Band 3 priority where an applicant is overcrowded. It does not define the term “overcrowded” so I consider it should have its ordinary meaning.
32. The policy does not say how it will assess Housing Register applications made by a joint tenant following a relationship breakdown or divorce.
33. According to the bedroom need standard in Appendix 3 of the Council’s policy, Mr X’s eldest child, who is 20, is entitled to a separate bedroom. She would not be expected to share a bedroom with her 15 year old sister. In normal circumstances, a married or cohabiting couple is expected to share a bedroom. But it does not seem reasonable to expect an estranged couple who are getting divorced to continue sharing a room.
34. As Mr X’s daughters were entitled to separate bedrooms under the Council’s bedroom need standards, and Mr & Mrs X could not reasonably be expected to share a room, I consider they lacked one bedroom when they were all occupying the flat. I consider the lack of one bedroom is “overcrowding” in the ordinary meaning of the word. In reaching this view, I took into account that the Council’s policy does not give a more restrictive definition.
35. For these reasons, I consider Band 3, rather than Band 4, was the appropriate priority band when Mr X was still residing in the flat with his family. This means the Council did not correctly assess Mr X’s application. That was fault.
36. I considered whether this fault caused injustice to Mr X. The evidence on the Council’s Homesearch website shows, on the balance or probabilities, that Mr X would not have been allocated a Council or Housing Association property before he left the flat if his application had been placed in Band 3. So the injustice is limited to Mr X’s frustration that his application was not properly considered.
37. Furthermore, Mr X’s circumstances are now different. The Council cannot award Band 3 for overcrowding now he no longer resides in the flat. He is now homeless. The Council must therefore reassess his Housing Register application to take account of his current circumstances and award the appropriate priority band.

Agreed action

38. Within one month the Council will invite Mr X to a housing advice interview to:
• establish his current housing circumstances and offer him advice on all his housing options;
• update his Housing Register application and decide if he still qualifies to be on the Register. If he does qualify, it will decide on the appropriate priority band and notify him of its decision;
• consider if it owes Mr X a duty under the Homelessness Reduction Act after carrying out a housing assessment and preparing a Personalised Housing Plan.

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Final decision

39. I have completed the investigation and found fault in the way the Council assessed Mr X’s Housing Register application when he first applied in February 2018. This caused Mr X some frustration. As Mr X’s circumstances have changed, and he is now homeless, the Council has agreed to offer Mr X housing advice and assistance and review and update his Housing Register application.

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Investigator's decision on behalf of the Ombudsman