Summary: Ms X complained the Council decided the family needed a property without stairs and delayed allowing her to bid for properties. The Council is at fault for giving too much weight to the medical adviser’s comments and not considering all relevant factors. It agreed to apologise and make a payment to Ms X for the delays caused.

The complaint

1. Ms X complained the Council wrongly decided her family needed a property without stairs. This meant she was not able to bid for suitable properties between May and October 2019, and missed out on five properties that might have been suitable for her.
2. Ms X also complained the Council further delayed her application by requiring her to make a court application to remove her former husband from the current tenancy. It cost her £245 to make the application and the court process means a further 16 weeks delay in bidding for properties. She says the Council should have advised her it needed her to make this application sooner.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

6. I spoke to Ms X and considered the information she provided.
7. I considered the Council’s replies to my enquiries.
8. I considered relevant law and guidance, as set out below, and our guidance on remedies.
9. Ms X and the Council had an opportunity to comment on two draft decisions and I considered their comments before making a final decision.

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What I found

Law and guidance

10. 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))
11. The allocations scheme must give reasonable preference to applicants in certain categories, including those who need to move on medical or welfare grounds.
12. The council must notify the applicant of its decision and the right to request a review.

What happened

Medical priority

13. In April 2019 Ms X applied for a larger property because her son needed his own bedroom. He was diagnosed with ADHD and sleep problems. She sent the Council medical evidence to support her application.
14. The Council referred the application to its medical adviser. The medical adviser agreed Ms X should have medical priority for a larger property. The medical adviser said the property should have no internal stairs.
15. In May 2019 the Council decided ground floor accommodation was most suitable for the family.
16. Ms X called the Council to ask why it said there should be no stairs. She said there were no ground floor properties available to bid for within a reasonable distance of her son’s school. She said he had no mobility problems and could manage stairs. The Council advised her to complete a further medical form that could be sent to the medical adviser.
17. Ms X completed a further form and the Council told her it would treat this as an appeal. It said this would take at least three weeks. It requested additional information in late May, which Ms X provided in early June. It upheld the original decision on 27 July 2019.
18. In response to my enquiries the Council said it considered all the information, including the medical adviser’s comments, when it made the original decision and when it considered the appeal. It said it understands the medical adviser recommended no stairs because Ms X’s son did not have a good sense of danger and needed close supervision. It said a new Housing Manager reviewed the case after Ms X made a formal complaint and decided the “no stairs” restriction should be over-turned. It wrote to Ms X to confirm this on 30 October 2019. The Council confirmed Ms X had missed out on five properties that might have been suitable for her between May and October 2019.

Findings

19. The Council was entitled to consult a medical adviser before deciding whether Ms X should be given medical priority. However, the final decision should be made by the Council not the medical adviser. The Council accepted in this case it gave too much weight to the views of the medical adviser and that was fault.
20. Ms X asked the Council to reconsider its decision. She explained she currently lived in a first floor flat and her son managed the stairs to go in or out of it. She said he had no mobility issues and referred the Council to the paediatrician’s report, which she sent in support of her original application, to support her view.
21. There is no record of the Council referring the matter back to the medical adviser either to clarify why “no stairs” was stipulated or for a further view on the appeal. There is no record the Council explained the issue was related to the son’s sense of danger rather than his mobility so Ms X was not able to address that point in her appeal. There is no record the Council considered whether this restriction meant there were no properties in its area that Ms X could bid for. The Council said its decision was to “err on the side of caution”.
22. I am not satisfied the Council properly considered the information Ms X provided at appeal nor all relevant factors, such as the availability of suitable ground floor properties in its area and within a reasonable distance of the son’s school. This was further fault.
23. These faults meant that Ms X was denied the opportunity to bid for suitable properties between early May and late October 2019.

Ending the joint tenancy

24. Ms X said in early November 2019 the Council told her she would have to make a court application to have her former husband removed from the current tenancy before it could consider her for a new property. She says it cost her £245 for this application and the court said it would take at least 16 weeks to process it. She told me she was frustrated she was not told about this before as this was now causing a further delay in bidding for suitable properties.
25. In response to my enquiries the Council said if Ms X gave the Council notice on the current tenancy it would end the tenancy for Ms X and her former husband. Therefore, the Council requires a court resolution stating who should retain the tenancy. It said it cannot deny either party their tenancy without legal confirmation. Initially it said Ms X did not tell them her former husband was not living in the property until early November 2019 so it could not advise her about this earlier.
26. In response to my first draft decision the Council said it had advised Ms X she would need to make a court application to remove her husband from the tenancy in March 2019. It provided a copy of its record of that advice and a further record in October 2019 giving Ms X’s former husband the same advice. I have also seen a Financial Information form Ms X completed in June 2019 for the housing application that confirmed she was advised “to go to court”.
27. The Council also provided further information about why it required a court order. It acknowledged that either party can end a joint tenancy by serving an appropriate notice. The law says this ends the joint tenancy for both parties. However, the Council does not encourage joint tenants to do this because of the risk they may then find themselves homeless. It also argues that a joint tenancy is a valuable asset and it is appropriate for the court to decide who should retain this asset in the event of a marital breakdown. Further, if the Council agreed to end the tenancy and award it to Ms X it considers it would be open to a potential challenge from her former husband.
28. There are occasions where the Council would consider ending a tenancy in this way, for example, where there is evidence of domestic abuse or risks to a child, but in those circumstances there would be additional evidence available through other agencies involved such as the police and children’s social care. Such factors do not apply in Ms X’s case.

Findings

29. Council records show it advised Ms X she need to make a court application in March 2019 and the form she completed in June 2019 also confirms she was aware of this requirement. Therefore, I cannot conclude the Council delayed in giving her this advice.
30. Although either party can end a joint tenancy by giving notice and there is no general requirement to apply to the court, it was open to the Council, after considering the circumstances of the case to seek a court order before ending the tenancy. As this was one of a range of options the Council could consider I cannot say it acted with fault in requiring a court order in this case.

Agreed action

31. The Council will, within one month of the date of the final decision:
• Apologise to Ms X for the faults in its decision-making;
• Pay Ms X £900 to remedy the delay in allowing her to bid for suitable properties; and
• Ensure its system is updated as soon as it has sight of the court order so that Ms X can bid for suitable properties without further delay.

The payment of £900 is based on £150 per month from May to October 2019 and is in line with our guidance on remedies. I consider the case is at the lower end of the scale, taking into account all the circumstances. The Council was not responsible for delays since October 2019, which were due to the need for a court order to resolve the tenancy issue.

32. The Council will, within three months of the date of the final decision, remind staff of the need to consider all relevant information and not to attach undue weight to a medical adviser’s opinion when making housing decisions.

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Final decision

33. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of this fault.

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Investigator's decision on behalf of the Ombudsman