Summary: There is insufficient evidence to show that the Council followed its own policies when it considered an application for housing and the Council has lost the relevant records. This is fault. The Council has agreed to apologise to Ms B, restore her original band date and review her application.

The complaint

1. Ms B complains about the way the Council considered her application for housing following a move to Cornwall and its decision to change her entitlement from 2 bedrooms to 1 bedroom and her band date from 2013 to 2017.

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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 discussed the complaint with Ms B. I have considered the documents that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

5. Every local housing authority must publish an allocations scheme 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))

The Council’s policy

6. The Council has an allocation policy which says the following.

Housing need

7. Applicants will be assessed based on their housing need and placed into one of 5 bands. The lowest band, band E is for people with the lowest housing need. If applicants of the same housing band bid, then the eligible band date is used to differentiate between applicants.

Eligibility for property type

8. The Council’s policy says that a single person living alone is eligible for a one bedroom property. The policy says:
• ‘Consideration will be given for the need to have an additional bedroom for a carer or team of carers who do not live at the property but provide permanent overnight care. This will be assessed by the Welfare Panel.’
• ‘The Welfare Panel will consider whether a household are or ‘would’ receive housing benefit entitlement based on additional bedroom requirement.’
9. The policy explains how an applicant should apply for an assessment by the Welfare Panel. Applicants should complete a Welfare Self-Assessment form which gives details of the applicant’s physical condition, details of their current property and why their current property does not meet their needs. Applicants should include any supporting evidence such as assessments from health and care professionals.
10. The Council’s Homechoice team carries out a desktop assessment and if the application meets the criteria, passes this to the Welfare Panel for assessment.
11. The Welfare Panel follows the Health Risk Matrix (also outlined in the policy) to assess welfare.
12. Following assessment by the Welfare Panel, the applicant will be informed in writing of the decision and any resulting change to their banding. If the applicant does not agree with the assessment, they can request a review of that decision.
13. Applicants have 21 days from the date of notification to submit a request for a review and to submit any new information. The Welfare Panel that was not involved in the original assessment will assess reviews. There is no further right of a review.

Change of address

14. Applicants who change their address will need to complete a new application. If their band is the same and they have re-applied within 28 days, the previous band will be re-instated. All other banding changes will have a new effective date.

General right to review

15. The Council’s policy says the Council has a review process that is followed if applicants feels that their application for housing has not been treated fairly. There is a right to request a review of any adverse decision.
16. Applicants will normally have 21 days from the date of any notification letter in which to submit a review request. Review requests should normally be submitted in writing to the Housing Needs Manager.
17. The Welfare Review process should be completed before a formal review is submitted for these reasons.

What happened

18. Ms B was living in a different area, but wanted to move to Cornwall to be closer to her family. Ms B had been registered with Cornwall Council as a housing applicant since 2013, but had been assessed as being eligible for a 1 bedroom property.
19. Ms B wrote to the Council in January 2017 asking for a review of the decision as she said she should be eligible for a 2 bedroom property, not a 1 bedroom property. She explained she had needs for a care and support and she sometimes needed night-time support. The second bedroom would allow a night-time carer to stay overnight.
20. The Council considered her request for a review and wrote to Ms B on 10 January 2017. The letter said her status was:
• Band: band E
• Band date: 28 October 2013
• Minimum bed size: 2
21. The Council wrote to Ms B on 24 April 2017 and said the banding and bedroom size was the same as in the letter of 10 January 2017.
22. Ms B says she called the Council for advice on 13 March 2017 as she was planning to move to Cornwall. She says the officer told her that all she needed to do, in terms of her housing application, was to ring or write and provide her new address and moving date, for the application to be transferred. The officer sent her application forms for housing and council tax benefit which Ms B returned.
23. Ms B wrote to the Council’s housing department on 7 May 2017 and told them what her new address would be from 26 May 2017 when she planned to move. Ms B’s new tenancy in Cornwall started on 26 May 2017, although she did not actually move until 5 July 2017 as the move was delayed because of illness.
24. On 8 June 2017 the Council informed Ms B of the outcome of her housing benefit application. It said she was entitled to the 1-bedroom rate. Ms B appealed the decision.
25. The Council’s housing department wrote to Ms B on 14 June 2017 and said her application had been assessed as:
• Band: band E
• Band date: 31 May 2017
• Minimum bed size: 0 and maximum bed size: 1
26. The Council’s housing department changed its IT system on 10 January 2018.
27. On 9 February 2018, the Council granted Ms B housing benefit for a 2-bedroom property after it considered her appeal.
28. Ms B complained to the Council on 30 November 2018. This complaint related to her adult social care provision, housing benefit and housing. I have focussed on the housing complaint in this investigation but may mention the other issues insofar as they are relevant to Ms B’s housing complaint.
29. Ms B said:
• The Council advised her that she only had to register her new address and her date of moving to transfer her housing application.
• The Council had accepted her May 2017 letter as an application, but had downgraded her to 1 bed and changed the band date without any reason.
• The Council’s refusal to give her a 2-bed property was disability discrimination.
30. The Council’s housing officer wrote to Ms B on 11 December 2018, partly in response to the complaint. She told Ms B:
• Ms B had to complete a new Homechoice application if she changed her address. She explained that the banding and bedroom need would be based on an applicant’s current situation so the whole form had to be completed again so that the Council could re-assess the applicant.
• The Council would honour Ms B’s previous date of registering if she completed the application form within one month of the change of address.
• The Council would also honour the band date if the banding remained the same as the previous application, but it would not honour the bedroom need. This would be reassessed.
• The Council had changed to a new IT system in January 2018 and it did not have access to its full system. However, the information it did have showed that Ms B’s previous registration date was 31 May 2017 and she was registered as needing 1 bed, band E. The Council said it had transferred this information to its new system.
• The Council would not register her as 2 bed on the information that she had provided as she did not meet the criteria.
• If Ms B had been previously assessed as a 2 bed need on the old register, she should send in the letter.
31. The officer set out the criteria for a 2nd bedroom for a carer:
• The need for a full time, live-in carer.
• Use of noisy equipment such as oxygen tanks and machines throughout the night.
• Room for provision of bulky medical equipment, such as hospital beds and wheelchairs.
• The need for 2 carers to get in and out of bed such as applicants who require a ceiling hoist.
32. The Council replied to Ms B’s complaint on 9 January 2019 and broadly repeated the advice the officer had provided in December 2018.
33. On 20 June 2019, Ms B sent the Council copies of the Council’s letters dated 10 January 2017 and 24 April 2017 showing her entitlement to a 2-bed property. A Council officer rang Ms B to on 3 July 2019 to discuss the matter. Ms B said she had made a complaint about this which was going through the complaints process. Ms B also said that she had been awarded housing benefit on a 2-bed basis after an appeal. The Council officer said she was not aware of the complaint and would check the status of the complaint.
34. The housing officer spoke to the housing benefit officer. She noted that the housing benefit criteria for bedroom need were different from the housing department’s criteria.
35. The Council wrote to Ms B on 15 July 2019 and said she had been assessed as:
• Band: band E
• Band date: 31 May 2017
• Minimum bed size: 0 and maximum bed size: 1
36. As part of my investigation, I asked the Council to provide me with the documents that the Welfare Panel had considered, the minutes of the Panel and the letters from the Council to Ms B about her housing.
37. The Council explained that it did not have any records before 10 January 2018 when the Council transferred to its new IT systems. Ms B has sent me copies of the letters to the Council and the Council’s replies from 2017.
38. The Council could not say whether Ms B’s case was referred to the Welfare Panel in June 2017 when the Council decided that Ms B was eligible for a 1 bedroom property. It said the case was not considered by the Panel in December 2018 or July 2019.

Analysis

39. Generally speaking, the Ombudsman would only consider complaints about allocations once the application had been decided and a review had taken place. However, as the Council has responded to the complaint and exercised discretion, I have done so as well.
40. This is an unusual case as the Council is missing a lot of the documents that the Ombudsman would consider as part of an investigation.
41. This is fault in itself as the Council should have records on how it made a decision and the evidence it relied upon.
42. I will firstly address the issue about the date of the application. The Council says Ms B should have completed a new application for housing within one month of her move if she wanted to keep her old band date. Ms B says that she was given different advice over the telephone.
43. I cannot say what advice Ms B was given as the Council has no record. I accept that Ms B sent her letter dated 7 May 2017 informing the housing department of her new address in good faith.
44. In any event, it appears the Council treated this letter as a new application. I say this for two reasons. Firstly, the Council sent me a copy of Ms B’s housing application dated 31 May 2017. This included Ms B’s new address in Cornwall with the new tenancy date of 26 May 2017. Secondly, the Council wrote to Ms B on 14 June 2017 telling that her application had been assessed.
45. The Council treated the letter as a new application dated 31 May 2017. Therefore, the Council should have applied Ms B’s previous band date which was 28 October 2013. It failed to do so and did not provide an explanation for its reasons. This is fault.
46. It is also not clear, from the evidence the Council has provided, whether Ms B has ever submitted a full application to be assessed by the Welfare Panel and whether this application has been properly assessed or reviewed in terms of bedroom entitlement.
47. The letter dated June 2017 does not explain why the Council said Ms B was eligible for a 1 bedroom property or how this was assessed. The Council has lost all the records so I cannot say whether the Council considered her application in line with the policy. This is fault.
48. Ms B then complained about the decision in November 2018 and sent her historic letters to the Council in June 2019. The Council responded to Mrs B’s complaint.
49. In its complaint response, the Council referred to a set of eligibility criteria for a 2 bedroom property but these criteria were not included in its policy. There was a lack of transparency in how the Council considered the complaint.
50. Therefore, I have concluded that, overall, there is not enough evidence to show that the Council has followed its own policies when it made the decisions.
51. I have considered what injustice Ms B has suffered as a result of the fault. I note that Ms B is in privately rented accommodation which broadly meets her needs although she says the property is expensive to heat and this is a particular problem for her because of her health needs.
52. I also note that Ms B is in the lowest band (band E) of entitlement for Council housing so her chances of finding a Council property would always have been low, whatever the bedroom banding.
53. I cannot say what the outcome would have been if the Council has followed its own policy and procedures and if the Welfare Panel had considered the application.
54. Therefore, Ms B’s main injustice is that the Council applied the incorrect band date. There is also the uncertainty of not knowing what the outcome would have been in terms of bedroom eligibility if the Council had followed the process correctly. Ms B says she has suffered stress through the process which affected her health and wellbeing.
55. In its response to the draft decision, the Council said it will restore the band date to the original date of 28 October 2013. It will send a welfare assessment form to Ms B which Ms B should return with the supporting information. Once this has been received, the Council will refer the application to its Welfare Panel for consideration of the bedroom need.

Agreed action

56. The Council has agreed to take the following actions and will:
• Apologise to Ms B in writing for the fault within one month of the final decision.
• Restore Ms B’s banding date to 28 October 2013 within one month of the final decision.
• Review Ms B’s application in line with its policy and refer the matter to its Welfare Panel within one month of Ms B returning the welfare assessment form and the supporting evidence.

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Final decision

57. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman