Summary: Mrs X complains on behalf of her daughter Miss Y about the way the Council handled her housing application. She says it did not follow its Allocations Policy before deciding her daughter was not eligible to join the housing register. She says her daughter feels her medical needs justify the allocation of a place on the register and wants the Council to reconsider her case. The Ombudsman finds the Council was at fault for not informing Miss Y why it rejected her application or how she could appeal its decision. It was also at fault for failing to acknowledge or respond to some of the correspondence and information submitted by Mrs X and for providing conflicting information about whether special circumstances could be considered in Miss Y’s case. The Council has already acted to remedy the injustice that Mrs X and Miss Y were caused by these faults. However, the Council has agreed to make some service improvements to prevent them from reoccurring.

The complaint

1. Mrs X complains on behalf of her daughter Miss Y about the way the Council handled her housing application. She says it did not follow its Allocations Policy before deciding her daughter was not eligible to join the housing register.
2. Mrs X also states the Council gave conflicting information about whether the special circumstances of her daughter’s case could be considered, which raised their expectations. Likewise, she says it did not confirm what its policy classes as a special circumstance, despite her requesting this information.
3. Mrs X says her daughter feels her medical needs justify the allocation of a place on the register and wants the Council to reconsider her case.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

7. Miss Y has given consent for Mrs X to represent this complaint on her behalf.
8. I have:
• Read the complaint and discussed it with Mrs X.
• Considered the Council’s comments about the complaint and the supporting documents it provided.
• Considered the Ombudsman’s focus report titled ‘Full house: Councils’ role in allocating social housing’ (January 2016).
• Provided both parties with an opportunity to comment on the draft decision. I have considered all comments before making this final decision.

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What I found

9. Every local housing authority must publish an allocations scheme or policy 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))
10. Councils must notify applicants in writing when they decide they are not eligible for an allocation or are not a qualifying person. Councils must also notify the applicant of their right to request a review of these decisions. (Housing Act 1996, section 166A(9))

Rother District Council Housing Allocations Policy

11. The Council’s Housing Allocations Policy states that applicants must satisfy at least one of its ‘local connection’ criteria to qualify for a place on its housing register. If the applicant does not live in the Council’s area, they may be deemed to have a local connection through the ‘relatives’ criterion. This applies when the applicant has a close relative, such as a parent, who has lived in the area for at least five years.
12. The ‘residence’ criterion applies when the applicant has lived in the area for at least three of the previous five years. This criterion also states:

“Residency in accommodation that is not residence of choice i.e. a placement in supported accommodation, foster care or residential care will not be considered to grant local connection. Under certain special circumstances, Rother District Council will look at the merits of the case two senior officers will determine whether or not that person will be granted local connection. If this is the case then the person will be written to and advised of the decision.”

What happened

13. Miss Y lives in London with her children. Her mother, Mrs X, lives in the Council’s area. Both live in permanent accommodation provided by their respective local authorities.
14. In mid-December 2018, Miss Y emailed the Council’s Homemove Team. She noted she was aware of the local connection criteria in the Council’s Allocations Policy and said she understood her circumstances did not qualify her for a place on the housing register. However, she asked whether an exception could be made as she was a parent and had specific medical issues. Regarding this latter point, she highlighted she had previously submitted a letter from her GP which supported her case.
15. The Homemove Team responded to Miss Y the same day and said her case would be passed to the Housing Needs Manager for consideration. Specifically, it said the Manager would decide whether to “grant a local connection under special circumstances”.
16. At the beginning of January 2019, Miss Y emailed the Homemove Team to check on the status of her request. It responded the following day and said the Housing Needs Manager had considered her case but decided not to consider her as having a local connection under special circumstances.
17. Mrs X then emailed an officer in the Council to support her daughter’s case. She provided details of Miss Y’s medical history and noted she was expecting her second child. She said her daughter needed her help and could receive this if she lived closer to her. Consequently, she asked that the decision not to grant a place on the housing register be reconsidered and noted medical evidence could be provided, if required.
18. At the end of February 2019, Miss Y’s MP contacted the Council and asked if it could reconsider its decision. In response, an Executive Assistant requested details of Mrs X’s residence so the Council could assess whether this qualified Miss Y as having a local connection. However, she highlighted it was likely Miss Y would be placed in the lowest housing band if she did and advised she might want to seek accommodation in the private rental sector, given the severe shortage of housing in the Council’s area.
19. In mid-March 2019, Mrs X emailed the Executive Assistant and said she had not received a response to the email she sent in January. She referred to the response provided to the MP and noted her daughter was hopeful when she was told the Housing Needs Manager would consider her special circumstances. She asked for details of the criteria used by the Council to decide whether special circumstances applied and for more information about how the banding system worked.
20. The following day, the Executive Assistant responded to Mrs X and stated the officer did not receive the email that was sent in January. Nevertheless, she said the Council could not change its decision unless Mrs X could provide evidence she had lived in the area for five years. She then referred her to the Council’s website for details of the banding system and made her aware of the lack of housing in the area, before providing advice about other options that were open to Miss Y, such as using a social housing exchange service or seeking private accommodation.
21. Mrs X subsequently emailed the Executive Assistant and stated she had lived in the area for two and a half years. She again asked for clarification when special circumstances were deemed to apply. After exchanging emails about the matter, the Executive Assistant said she was unable to address this matter as she had not referred to “special circumstances” in any of her emails. Consequently, she advised Mrs X to raise the matter with the officer who initially used this term.
22. A few days later, a caseworker from the office of Mrs X’s MP emailed the Executive Assistant. He said Mrs X was seeking clarification of the criteria for special circumstances and why the Council felt her daughter did not meet these criteria. The Executive Assistant responded and said these circumstances applied in “extreme situations around the provision of specialist medical care”.
23. Around a week later, Mrs X submitted a complaint to the Council about the way it had handled her daughter’s case. She said the email her daughter was sent in December – which stated the Housing Needs Manager would consider whether she had special circumstances – had raised their expectations. However, she said the decision subsequently taken by the Manager not to grant a local connection had devastated them both. She stated her daughter needed to live close to her and the situation was affecting her wellbeing.
24. Mrs X added she had not received a response to some of the correspondence she had sent to the Council, including a letter from her daughter’s doctor which she had delivered by hand. She also said she was not content with the responses she had received about the criteria relating to special circumstances.
25. At the beginning of April 2019, Mrs X emailed the Executive Assistant to check whether the Council had received a letter from her GP sent two weeks earlier. She also asked whether the letter would be beneficial to her daughter’s case. The Executive Assistant responded and confirmed the letter had been received. However, she said this did not affect the Council’s decision.
26. In the middle of the month, the Council’s Customer Services Manager responded to Mrs X’s complaint. He explained the Council’s Allocations Policy, specifically the section relating to local connection and highlighted the provision which stated two senior officers will consider the merits of a case in special circumstances. He said the Council had reviewed the case presented by Mrs X and Miss Y but decided special circumstances did not apply, before outlining the kind of circumstances in which they would apply.
27. In summary, the Manager decided not to uphold the complaint. However, he accepted the Council’s Allocations Policy could be clearer about what constituted special circumstances and said he would recommend that this be amended to provide clarity.
28. The following day, Mrs X asked the Council to escalate her complaint.
29. In mid-May 2019, the Council’s Head of Service for Housing and Community responded to the escalated complaint. He said Miss Y was not eligible to join the housing register because Mrs X had not lived in the area for at least five years, as per the Council’s Allocations Policy. He said there were no exceptions which applied to Miss Y’s case and the Council did not have any discretion to make exceptions to its criteria. Consequently, he apologised the Council had advised that special circumstances could be considered and that this had raised Mrs X’s and her daughter’s expectations. He also apologised her correspondence had not been responded to and partially upheld the complaint.
30. Mrs X subsequently complained to the Ombudsman about these matters.

Analysis

31. The Homemove Team advised Miss Y in December 2018 that the Housing Needs Manager would consider whether to deem her as having a local connection through special circumstances. This was after she sent the Council an email asking it to make an exception in her case. The Homemove Team accepted Miss Y’s request despite the fact she had not submitted an online housing application, meaning she was making her request outside the formal application process. The online process allows applicants to provide details of any special or exceptional circumstances relevant to their case, therefore the Homemove Team should have insisted that Miss Y used the online application system, unless she was unable to do so for some reason. However, it did not enquire whether she could access the online application system and proceeded to deal with her request outside the formal process.
32. Regardless of how the Homemove Team dealt with Miss Y’s request, it did not tell her, in writing, why the Housing Needs Manager decided she did not qualify for a place on the register, nor did it inform her of her right to request a review of the decision. Given the provisions in the legislation, it should have done this.
33. Mrs X then started liaising with the Council to find out why her daughter’s application had been unsuccessful. It is clear that some of the correspondence and information she submitted to the Council was not acknowledged or responded to. It is also clear she was given conflicting information about the Council’s Policy on special circumstances. The Homemove Team and the Customer Services Manager indicated that special circumstances could be considered in Miss Y’s case. The Executive Assistant initially declined to address the matter then only did so in response to the enquiry from Mrs X’s MP. And the Head of Service for Housing and Community indicated no special circumstances or exceptions could be considered and the Council did not have the discretion to do so.
34. Considering all these points, I have found the Council was at fault for:
• Not explaining, in writing, the reasons why Miss Y could not be granted a local connection through special circumstances and how she could request a review of this decision.
• Failing to acknowledge or respond to some of the correspondence and information which Mrs X submitted to the Council about her daughter’s case.
• Providing conflicting information about whether special circumstances could be considered in Miss Y’s case.

Injustice

35. Despite its faults, the evidence does show the Council eventually considered whether special circumstances applied in Miss Y’s case, which was confirmed by the Customer Services Manager when he responded to Mrs X’s complaint. Therefore, I have decided not to recommend a fresh review of the case. Its faults did cause Mrs X and Miss Y some distress, however the Head of Service for Housing and Community has already apologised for what happened. Moreover, I note the Council did not, at any stage, promise to grant Miss Y the status of having a local connection through special circumstances; rather, certain officers merely stated it would consider whether to. Therefore, the apology that was given is a proportionate response to the distress caused by its faults.
36. Nevertheless, my findings have shown that understanding of the Council’s Allocations Policy, specifically in relation to special circumstances, is disjointed and varies amongst staff. In addition, I am concerned the Head of Service for Housing and Community has stated the Council retains no discretion in these matters. The Ombudsman takes the opposite view. In January 2016, we issued a focus report titled ‘Full house: Councils’ role in allocating social housing’. This report stated we expect local authorities to consider whether special or exceptional circumstances apply when asked to do so by an applicant, even if their housing allocation policies do not explicitly state they will do this. The Council always retains discretion to make exceptions and it must not fetter this discretion. Furthermore, in this case the Council’s online application system asks applicants whether they have an “exceptional reason” which means they need to live in the area. This indicates it will consider special or exception circumstances when requested to do so, as does the ‘residence’ criterion in its Allocations Policy.
37. It is clear the Council needs to act to address the issues identified above. Consequently, I have made some service improvement recommendations in the section below to help it do this and ensure the faults which have been identified do not reoccur.

Agreed action

38. Within one month of this final decision, the Council has agreed to:
• Decide whether to amend its Allocations Policy so it explicitly states it will consider any special or exceptional circumstances submitted by an applicant. Case law dictates it does not have to include this in its policy, however the current provisions are not clear and are confusing staff. Therefore, I strongly suggest it makes the amendment to rectify this matter.
• Send a copy of this final decision statement to those staff that deal with housing applications, including managers. In a covering email, it should instruct them to read the statement and stress the importance of:
1. Ensuring applicants use the online application system, if able to do so.
2. Making enquiries when applicants appear reluctant to use the online system, to establish if there are any reasons why they cannot do so and whether reasonable adjustments under the Equality Act 2010 might need to be considered.
3. Considering any special or exceptional circumstances submitted by an applicant in support of their application, regardless of whether or not this is stipulated in the Council’s Allocations Policy.
4. Providing reasons when rejecting an application and notifying applicants of their right to request a review of the decision.
39. The Ombudsman will need to see evidence that these actions have been done.

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Final decision

40. I have completed my investigation and found that the Council was at fault for not informing Miss Y why it rejected her application or how she could appeal its decision. It was also at fault for failing to acknowledge or respond to some of the correspondence and information submitted by Mrs X, and for providing conflicting information about whether special circumstances could be considered in Miss Y’s case.

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Investigator's decision on behalf of the Ombudsman