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Birmingham City Council (19 005 833)

Category : Housing > Allocations

Decision : Upheld

Decision date : 27 Mar 2020

The Ombudsman's final decision:

Summary: Mrs Y complains the Council was at fault in the way it considered her housing application and awarded her banding priority. The Ombudsman finds the Council was not at fault in the way it allocated Mrs Y her housing banding. He does find the Council was at fault as it delayed in considering Mrs Y’s review request. The Council has already apologised to Mrs Y for the delay which is suitable action for it to take. So, the Ombudsman has completed his investigation.

The complaint

  1. Ms X complains for Mrs Y the Council has not dealt with Mrs Y’s housing application properly. As a result, Mrs Y and her family are living in unsuitable accommodation causing distress. Ms X considers the Council should allocate Mrs Y priority banding to help them move to new accommodation.

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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 have been reallocated the complaint. I have read the papers submitted by Ms X and Mrs Y and noted the previous Investigator’s telephone call with Ms X and Mrs Y to discuss the complaint. I have considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Ms X and Mrs Y and the Council and considered the comments received.

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What I found

The law

  1. 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 housing allocation policy

  1. The Council prioritises housing applicants according to need. This says those with an emergency medical or disability need will be placed in Band One. Priority will be given depending on how unsuitable the current accommodation is in relation to their health needs. This includes where a person has restricted mobility and has difficulties accessing facilities such as the bathroom, and the property cannot be adapted easily.
  2. An applicant may be placed in Band Two where they have a severe medical need, but they are not housebound, and their life is not at risk.
  3. The Council may seek the advice of a medical expert but the final decision rests with the Council.
  4. Any decision about a housing application can be challenged by seeking a review with the council. The Council’s Housing Allocations Policy says it will consider a review request within 56 days of the request. It may agree a longer period with the applicant. This is in line with the governments code of guidance for local housing authorities when allocating accommodation published in 2012. The code sets out how councils should conduct reviews. It says 8 weeks is a reasonable timescale for the Council and applicants should be notified of any extension to this deadline and the reasons for it.
  5. The Council’s policy says it awards the band date from the date it accepted the application as complete. This is the registration date. But if an applicant’s circumstances change and they move to a higher band, the award date will be the date that the higher priority was given.

What happened

  1. Mrs Y lives with her husband and two sons in a privately rented house. Mr Y suffered a disabling stroke in 2017. He also suffered with dementia and poor mental health. Following a traumatic incident, he cannot now use the stairs and so he cannot access the toilet or bathroom. Their youngest son has autism that means he has a variety of personal care needs, including help with toileting. The family is reliant on Mrs Y to meet their substantial care needs and so they are reliant on benefit income, which makes finding housing more difficult.
  2. Mrs Y’s landlord has served notice on the family and they are seeking alternative accommodation.
  3. The Council considered Mrs Y’s housing application. It accepted the application and decided in December 2018 they were eligible for a two-bedroom house and placed them in Band Two. The Council wrote to Mrs Y explaining the outcome and reasons for its decision. Mrs Y asked the Council to review this on 28 December 2018. She said the family needed a four-bedroom house due to the severe physical and mental health needs of the family. Mrs Y requested a bungalow due to issues with Mr Y and the youngest son accessing stairs.
  4. The Council responded to the review on 24 April 2019. It apologised for the delay in carrying out the review and said it had only recently been forwarded to the correct team.
  5. The Council explained its decision to Mrs Y that they remain in Band 2. But it decided the family was eligible for a three bedroom need because the youngest son would benefit from his own bedroom. The Council did not support the request for Mr Y to have his own bedroom. It told Mr and Mrs Y allocations to bungalows were age restricted and they did not comply. The Council advised Mrs Y to bid for three-bedroom flats if they wanted accommodation all on one level.
  6. Mrs Y contacted the Council wanting to appeal both the number of bedrooms allocated and the banding given. Mrs Y considered the family should be awarded Band 1 priority and said she would submit more information. The Council told Mrs Y to contact the occupational therapist (OT) to be assessed for a specific property type or adaptations.
  7. Mrs Y submitted additional medical information about the family and in July 2019 an OT carried out an assessment on the family.
  8. The Council says mobility assessments are carried out by the OT’s and the housing officers rely on the decisions of the relevant professionals. To be considered as a Band 1 an applicant needs to be assessed with a Priority Need Assessment (PNA) score of 3. The OT noted Mr Y did not access the first-floor facilities due to his mental illness and not his mobility. The Council considered whether it should put Mr and Mrs Y in Band 1. It considered all the medical information they provided including letters from their son’s school and his consultant, Mr Y’s consultant and the mental health services. The Council did not consider the evidence provided met the criteria for a Band 1 award.
  9. The Council told Mrs Y her application remained in Band 2, but she could now bid for 4-bedroomed properties. The Council backdated the award to 11 December 2018.
  10. Following our enquiries about the complaint the Council carried out a review of Mrs Y’s application and asked an OT to review the mobility assessment and other information. An OT reassessed the family in August 2019 and concluded that Mr Y could not access the bathroom, toilet or bedroom due to his disabilities.
  11. The OT decided they needed a through floor lift, a level access shower and a ground floor bedroom and toilet for Mr Y. The OT’s revised assessment gave Mr and Mrs Y a PNA score of 3. The Council reassessed Mrs Y’s housing application and awarded her Band 1 priority with a date of 11 December 2018.

My assessment

  1. It is not for the Ombudsman to decide what housing band Mr and Mrs Y should be awarded. That is a decision for the Council to make based on the evidence provided. It is instead the role of the Ombudsman to look at the way in which the Council has made its decisions.
  2. The documents I have seen show the Council considered Mrs Y’s application and supporting information in December 2018 and awarded Band 2 priority with a two-bedroom need. The Council reviewed its decision in April 2019 following the request by Mrs Y submitted with additional information. The Council considered Mrs Y should remain Band 2 but with a three-bedroom need.
  3. The documents show the Council consider further information from Mrs Y and an OT assessment in August 2019. The Council did not consider Mrs Y’s application merited Band 1 priority so she remined in Band 2 but with a four-bedroom need.
  4. Mrs Y disagrees with the Council’s decision not to award her Band 1 priority. The decision Mrs Y should remain in Band 2 priority is a matter of officers’ professional judgement. The Ombudsman cannot question the merits of the decisions themselves without evidence of fault in the way there were made. I do not consider there was fault in this case over the decisions on Mrs Y’s banding priority.
  5. This is because the documents show the Council considered the information provided by Mrs Y at each point and later an OT assessment on Mr Y’s mobility needs. The decisions Mrs Y should remain in Band 2 were decisions the Council was entitled to take. I am satisfied the Council followed the proper process when considering Mrs Y’s requests and it has explained its decisions. There is no evidence of fault.
  6. The documents I have seen show the Council delayed in considering Mrs Y’s review request submitted in December 2018. The Council did not complete the review until 24 April 2019. This was six weeks longer than the timescale stated in the Council’s policy. This is fault by the Council. I consider it has caused an injustice to Mrs Y as it will have distress to her while waiting for a decision. However, the Council has already apologised to Mrs Y for the delay which I consider is suitable action in this case and will remedy any distress caused.
  7. The Council has now reassessed Mrs Y’s application and awarded her Band 1 priority which is the outcome she was seeking. The Council has also awarded the priority back to the date of Mrs Y’s registration date which will increase Mrs Y’s chance of being offered accommodation. Because of this I do not consider I can achieve anything further for Mrs Y.

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Final decision

  1. I am completing my investigation. There is no evidence of fault in the way the Council initially decide to award Mrs Y Band 2 priority. The Council delayed in considering Mrs Y’s review request, but its apology is suitable action for it to take.

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Investigator's decision on behalf of the Ombudsman

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