Summary: Mr B complains the Council has failed to take appropriate action in respect of his family’s housing needs. The Ombudsman finds there was some fault by the Council in this matter. The failings identified caused injustice to Mr B, for which a remedy has been agreed.

The complaint

1. The complainant, whom I shall call Mr B, complains the Council has failed to take appropriate action in respect of his family’s housing, which is overcrowded and unsuitable for his family which includes a disabled child.

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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)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of all the information and evidence it provided in reply.
6. I provided Mr B and the Council with a draft of this decision and took account of the comments received in response.

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What I found

Background

7. Mr B and his wife have four sons, aged between seven and 16 years, and a daughter aged 13 years. The eldest son has autism and associated difficulties which Mr B reports are aggravated by the family’s overcrowded living conditions, as the family is currently accommodated in a two-bedroom flat.
8. The family is on the Council’s housing register and is currently assessed as needing a four-bedroom property.

Housing allocations

9. 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))
10. 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))

11. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

The application of the allocations policy in this case

12. The Council’s allocations policy complies with the above statutory requirements. Also, it sets out local priorities under which additional preference may be given. These include severe overcrowding.
13. An applicant who falls within two reasonable preference categories will be given more priority than an applicant who falls within one.

Overcrowding priority

14. The Council awarded Mr B’s application reasonable preference in the overcrowding category because it considered they were lacking one bedroom. The number of children and their gender and ages mean that the family needs four bedrooms: in the current accommodation there are two bedrooms plus one other room which could be used as a bedroom. This room is a shared reception room and kitchen area.
15. Mr B considers this open-plan room cannot be used as a bedroom. However, a kitchen diner can be considered to be a living room suitable for use as a bedroom provided it is big enough to accommodate a bed.
16. The Council decided Mr B did not qualify for additional preference in respect of severe overcrowding. This priority under the Council’s scheme is awarded to applicants who are lacking two or more bedrooms, and where any reception rooms have also been considered as rooms available for household members to sleep in.
17. On the evidence so far seen, I find no fault in the way the Council dealt with Mr B’s housing application in terms of the award of priority in respect of overcrowding.

Medical priority

18. The Council’s allocations scheme allows the award of reasonable preference on medical grounds where the accommodation the applicant is currently occupying is impacting adversely on their medical condition and having a serious detrimental effect, and / or moving into alternative suitable accommodation would lead to significant improvements in health or quality of life. The policy notes that in certain circumstances there may be health or social grounds to support the need for households to have additional bedrooms.
19. In respect of Mr B’s application for priority on medical grounds, he sent a medical report to the Council about his son’s autism. On 13 February 2019 the Council telephoned Mr B to confirm receipt of this report. In the Council’s record of this telephone call it noted the following:
    “I informed client that he does not meet the criteria for severe overcrowding but assess the medical case and advise the outcome. I informed him that I will be referring the case for an 0.T [Occupational Therapist] visit to establish his son's needs. I advised that this could take some time but he can also be referred by his G.P”.
20. On 11 and / or 15 April 2019 the Council wrote to Mr B stating that his housing application had been re-assessed in the light of the information provided in the medical report submitted and all the information on file. In respect of medical priority, it said all the information submitted had been assessed but its decision was that the current accommodation was not considered to be exacerbating the eldest son’s medical condition and as such no medical or welfare preference was awarded. The letter said:
    “As earlier discussed during the telephone conversation….an Occupational therapist report may throw more light and this will be considered when received”.
21. The letter also set out Mr B’s right to seek a review of the Council’s decision, within 21 days.
22. The Council has provided me with two copies of the letter referred to above: they are substantively the same although do differ slightly. It is not known whether one of these or both were sent. Both were however incorrectly addressed to Flat 7, when Mr B lives in Flat 17, despite the body of the letter continuing reference to this correct address. I shall return to this point later in this statement.
23. Mr B did not receive the incorrectly addressed correspondence, and in April he complained to the Ombudsman about how the Council had dealt with his housing needs. At that time the Council confirmed Mr B could seek a review of its decision on his housing priority and so on that basis the Ombudsman did not investigate the complaint.
24. On 28 June the Council wrote to Mr B with the decision on the review. In this letter it apologised for the delay in issuing the decision, although the Council says in fact it has no record of a request for a review, so it is unclear what delay is referred to here. The review decision letter set out consideration given to Mr B’s family circumstances including medical conditions and concluded that at the award of priority only on overcrowding grounds was appropriate. The letter of 28 June was once again incorrectly addressed, this time to Flat 12, and Mr B did not receive it.

Analysis

25. As noted at paragraph 19 above, the Council advised Mr B on 13 February that a referral was being made for assessment by an occupational therapist. The purpose of such referral would be to get additional information to inform the Council’s decision-making in respect of Mr B’s sons needs and the impact of this in terms of any award of medical priority. However, no such referral was made. The Council says that it did not do so because the assessing officer did not consider that it would assist assessment beyond the medical information that had already been provided. But the Council did not tell Mr B it had decided not to make a referral to an occupational therapist or explain the reason for it. In fact, as noted in paragraph 20 above, in the letter of 15 April it referred to the telephone conversation of 13 February and to the consideration to be given to an occupational therapist report once received. That suggested the report was still awaited. Even if he had received the Council’s letter it gave no indication to Mr B that the Council had decided not to pursue such evidence, or that he could seek to get such evidence himself instead. The failure to appropriately inform Mr B about the occupational therapist referral it had decided not to pursue was fault. The Council’s actions in this matter caused Mr B raised and disappointed expectation and meant that an opportunity to obtain such a report himself at an early opportunity was lost.
26. As noted at paragraphs 22 and 24 above, the Council issued a number of letters to two incorrect addresses. This was fault. The letters contained personal information about the family’s circumstances and medical conditions, and there is a justifiable concern that such information has now been shared with Mr B’s neighbours. In addition to such distress, because Mr B did not receive the letters he was put to some additional time and trouble seeking updates and responses from the Council.
27. Although the Information Commissioner deals with complaints about data protection, there is a role for the Ombudsman here because the administrative fault identified has caused injustice for Mr B for which a personal remedy is appropriate. Mr B could still refer the matter to the Information Commissioner for consideration if he wishes.

Agreed action

28. In recognition of the injustice caused to Mr B by the faults identified in this case, I recommended that within four weeks of the date of the decision on this complaint the Council:

• Issue Mr B with a formal apology;
• Pay him £300; and
• Considers the apparent data protection breach, documents that consideration and takes such action as appropriate in terms of self-referral to the Information Commissioner and advises Mr B accordingly.

29. I also recommended that the Council:

• make a referral to an occupational therapist for assessment, to inform a further review of Mr B’s housing needs;
• on receipt of the occupational therapist’s report, carry out the review and notify Mr B of the outcome in a timely manner; and
• if the review results in increased priority for rehousing, offer appropriate remedy for any lost opportunity for rehousing Mr B has sustained.

30. The Council agreed to my recommendations.
31. Mr B has recently obtained and submitted a letter from an occupational therapist. The Council has confirmed receipt of this letter and has agreed to conduct a review within 14 days. However, if the information Mr B has submitted from the occupational therapist is not adequate to properly inform the review, the Council should arrange an assessment as set out at paragraph 29 above.
32. In addition, taking account of Mr B’s assertion that the kitchen dining room in his property is not big enough to be used as a bedroom, the Council will further consider this point when completing its review.
33. The actions outlined above will provide a suitable remedy for this complaint.

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Final decision

34. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman