Summary: Miss N complains the Council failed to ask her questions about disability benefits, that were crucial in the award of a higher priority on its housing register. We uphold the complaint, as we find fault with the way the Council dealt with asking Miss N about adjustments she needed because of her disability. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Miss N, complains that:
• In November 2018 she was speaking to a Council officer on an almost daily basis about an application to the housing register. The officer knew she was disabled. But he did not ask her about her communication difficulties. Nor did he ask if she received Personal Independence Payment (PIP).
• The reason she filled out a form incorrectly was because the wording was misleading.
• She spoke to an officer on the telephone, who denied giving advice about calling the Council’s customer services.
2. The consequence of the faults is that her increased priority on the Council’s housing register was delayed. Miss N wanted the Council to backdate her increased priority.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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))
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss N;
• made enquiries of the Council and considered its responses;
• spoken to Miss N;
• sent my draft decision to Miss N and the Council and considered their responses.

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What I found

Legal and administrative background

Housing allocations

6. The law regarding local authority housing allocations requires councils to devise allocation schemes for determining priorities between applicants for housing. It gives councils a good deal of discretion over how they allocate their housing stock.
7. The Council’s Allocation Policy has a scheme that awards Band C priority for applicants who have a need to move. Band B is for those who have a need to move, and have a locally determined priority. Band A is for applicants who have an urgent need to move.
8. The groups that qualify for the Council’s Band B local priority are those:
• in a working household;
• volunteering;
• in training or education;
• ex-service personnel;
• registered foster carers;
• carers;
• people with disabilities and older residents. Officers can use discretion to award a local priority, when a disability stops the applicant meeting one of the other routes to local priority;
• young people.

Reasonable adjustments

9. The Equality Act 2010 says individuals or organisations that provide a service to the public must make sure that a disabled person can use a service, as far as is reasonable, to the same standard as a non-disabled person.
10. When the duty arises, the public body is under a positive and proactive duty to look at removing or preventing obstacles to a disabled person accessing its services. If the adjustments are reasonable it must make them.
11. Under its Equal Opportunities section, the Council’s Housing Allocations Policy says:

‘Applicants will be invited to indicate if they wish to make use of the Council’s translation and interpretation services, or if they require other special services as a result of visual impairment, hearing difficulties or other disability.’

What happened

12. Miss N applied to the Council’s Housing Register in July 2018, by completing an online application form. She noted on the form she was completing it herself. She did not indicate any support needs around visual impairment. She ticked yes to a question asking her if she was receiving one of three benefits. One of those benefits was PIP, a disability benefit.
13. The form asks the applicant how they would like to be contacted. The options are various types of telephone or email. The Council says if an applicant does not indicate a preference, the default option is for it to use email. Miss N did not indicate a preference.
14. In October the Council noted Miss N had not provided information it had requested to go with her July application. There is a note on the Council’s file, recording a telephone conversation with Miss N:

‘[Miss N] has also noted that going forward, letter would be best contact for her. She has some trouble with her vision so looking for emails is difficult for her. She has asked if it is possible to be contacted with the application when it is available, as well as a letter being sent.’

15. At the end of October the Council wrote to Miss N, asking her to supply supporting medical evidence, from a doctor, to confirm her medical problems and how her current accommodation affected her. Miss N supplied information, but the Council’s view was it was insufficient. It asked one of its occupational therapists to carry out an assessment. On 13 November, after that assessment, the Council gave Miss N a Band C ‘high medical without a local priority’ priority on its housing register. The letter gave her advice about the local priority route to a attaining a Band B.
16. The Council has a note of a 26 November telephone call with Miss N, where it agreed to take over the telephone, as a reasonable adjustment, her appeal against the 13 November banding decision.
17. The Council’s officer also emailed Miss N a form to apply for a local priority. It notes Miss N did not ask for help completing the form. Miss N says her friend helped her complete it, as she could not read it. The form they returned to the Council has boxes for both the caring and volunteering routes to qualification ticked, but then crossed out. Miss N ticked the box for exceptional circumstances. She said she needed help getting her daughter to school, her medication ‘knocked her out’, her disabilities stopped her moving around and she needed to stay near her GP surgery.
18. The Council received the form on 7 December. On 11 December, it wrote to Miss N with its decision to refuse her application for local priority. The letter said:

‘Whilst I appreciate you require to be close to a school for your daughter, you take medication that makes you tired and your medical issues affect your mobility, this does not advise why you are unable to meet the criteria for local priority to be awarded by normal means that therefore local priority has not been agreed.’

19. On 12 December 2018 Miss N telephoned the Council and advised she would not be able to read its decision letter.
20. Miss N complained about the banding decision. The Council replied in January 2019, in large font, (noting its record from 11 October 2018). It advised:

‘…the Homechoice Team need to know why the criteria for Local Priority cannot be met…the Homechoice Team decided that Local Priority could not be awarded under exceptional circumstances as you had not demonstrated why you could not meet the criteria for Local Priority.

You have stated you have previously been medically retired and if you volunteer, you will not receive your ESA [a benefit for those not able to work due to incapacity]. The Homechoice Team have asked you to provide details of whether you are in receipt of ESA and also if there are any further medical information you have from your previous employer relating to your medical retirement. The Homechoice Team will then be able to give further consideration to Local Priority and Band B’.

21. The next record of contact in the Council’s file is from June 2019. The Council emailed Miss N with some questions, as her housing register application was due for review. Miss N did not respond, so the Council removed her application. On 25 July Miss N spoke to an officer. She advised the officer she was in receipt of PIP. The officer asked Miss N to send proof.
22. On 29 July, Miss N telephoned the Council’s Homechoice Team. That Team’s policy is that it expects applicants to contact it via the Council’s Customer Contact Team. Miss N has a recording of the call. In it, the officer at first said she would transfer Miss N to the Customer Contact Team. Later in the call she advised Miss N to ring that Team. The officer later denied she had earlier offered to transfer Miss N.
23. Miss N sent the Council evidence she received an enhanced rate of PIP, due to her mobility problems. On 31 July the Council awarded her Band B local priority, under exceptional circumstances. Its view was the information from the PIP and the earlier occupational therapy report showed Miss N could not work or volunteer. So she was not able to fulfil the criteria of the local priority scheme. In its response to my enquiries, the Council described this as ‘…a further reasonable adjustment’. The start date of the new priority was July 2019, when it says Miss N first told it she was in receipt of PIP.
24. Miss N complained. The Council provided an oral response. Its note says it told Miss N in that telephone call:
• The local priority form advised that Miss N needed to be in receipt of PIP to receive local priority. It noted the form asked carers for ‘confirmation that you are in receipt of PIP higher rate or carers allowance or care element DLA for your dependant.’
• It upheld the part of the complaint about the conduct of its officer during the 29 July telephone call.
25. Miss N escalated her complaint. The Council’s response at the second stage of its complaints procedure advised:

‘Had you explained that you were unable to read the Local Priority forms due to your health and would want to go through it over the phone, then the Homechoice Team would have completed this with you. You had requested the Local Priority form be sent by mail instead of email, but did not make a request for documents to be read and discussed verbally. Therefore the Homechoice Officer followed the correct procedure in sending the Local Priority form to you in the way in which you requested.’

26. Miss N then complained to the Ombudsman. In response to my enquiries, the Council advised:
1. ‘[Miss N] as part of the application process, would have been asked if she had any sensory impairment, Ms [N] did not indicate that she had, nor did she complete any details in the free text box relating to requirements for adjustments. She had also not mentioned any visual impairment in the medical section of her form.’
2. ‘The Homechoice Team does not have a policy or procedure for how reasonable adjustments are applied, they are made on a case by case basis. All staff have had Equality and Diversity training and are made aware to ensure that reasonable adjustments are made for customers if they are advised of the requirement.’
3. It acknowledged inconsistencies in the way it had provided Miss N with information. But it said this had no detriment to her. It noted times when she had responded to emails.
4. Receipt of PIP was not, in itself, a criteria for local priority. It had earlier sought information from Miss N about her situation.
5. Its view was any inconsistencies on its part did not cause any injustice to Miss N.
6. It noted:
1. between 11 October 2018 and 31 July 2019 it allocated seven properties to Band B applicants with an effective date after 11 October;
2. Miss N had bid on three of these, which had all gone to applicants with start dates in November and December 2018;
3. it could not say if any of those properties would have been suitable for Miss N;
4. Miss N had, for example, most recently visited a property that they deemed unsuitable, due to her medical conditions;
5. Its occupational therapist was working with Miss N to decide whether properties were suitable.
27. In her response to my draft decision, Miss N:
• Agreed that many properties were not suitable for her because of her visual impairment and physical disabilities;
• advised me she needs to rely on her (adult) son to assist her in bidding for properties, as she cannot read the type in, for example, the online description of properties;
• told me about difficult personal circumstances that contributed to the delays by her, at times, responding to the Council;
• gave me a list of properties she had bid for that she thought might have been suitable, but where the successful applicant had an earlier starting date on the housing register.
28. In its response to my draft decision, the Council argued, in fairness to other applicants, the best date to change the start of Miss N’s housing register place was to the date she returned the local priority form.

Was there fault by the Council?

Reasonable adjustments

29. When Miss N first applied for the housing register, she did not select a descriptor on the form for support needs around visual impairment. Nor did she mention these needs anywhere else on the form. The Council also notes then she was responding to some emails. So, on the balance of probabilities, my view is it is unlikely Miss N would have mentioned any reasonable adjustments if the Council had then asked about them.
30. Miss N has advised her visual impairment has got worse over time. She first advised the Council of a visual impairment on 11 October 2018. She noted this several time after. It is not just a matter of the Council responding to each of Miss N’s individual requests for adjustments. Under the Equality Act, the Council should have proactively enquired whether it needed to make reasonable adjustments for Miss N. It should have kept a record of any agreed adjustments. It should not have expected Miss N to make a request every time she contacted the Council. The Council did not do that, which was fault.
31. The Council says it does not have a reasonable adjustment policy. But it should have some reference to how it deals with reasonable adjustments in its policy and/or procedures. Without something, officers have no guidelines on how the Council expects them to carry out their proactive duties under the Equalities Act. The Equality and Diversity training the Council says officers have had is not a substitute for local guidance for staff. The lack of a procedure likely contributed to the Council’s failure to fully explore and record adjustments with Miss N.
32. The Council’s Allocation Policy says it will ask applicants to note any need for adjustments (see paragraph 11). That is what we would expect. But there does not seem to be any mechanism in its application process that proactively seeks information about reasonable adjustments.

The discretionary decision to award local priority Band B

33. From November 2018 the Council asked Miss N for information about how her disabilities affected her ability to meet its own local priority route to qualifying for Band B on its register. It also asked her for information about ESA (see paragraph 20). But it did not ask about PIP. This is significant because:
• Miss N had ticked a question on her application form that indicated she might be in receipt of that benefit. The Council did not seek to clarify this information it already had.
• The Council later placed significance on the fact Miss N did receive this benefit. And her receipt of PIP was the information (in addition to information it already had), that allowed it to grant her Band B under its discretionary route.
34. The Council says its local priority form asks about PIP (see paragraph 24). But that reference is in the section about the caring route to qualification. My reading is it is asking about any benefits the dependant receives, or that an applicant receives for their caring role.

Did the fault cause an injustice?

35. I do not agree with the Council that any fault did not cause a detriment to Miss N. If the Council had been more proactive in finding out from Miss N about any adjustments, she might have earlier told it about her PIP award, sometime after October 2018. This uncertainty is an injustice.
36. I acknowledge the Council’s comments that receipt of PIP is not in itself a qualifying criteria for local priority. But it is the missing piece of information it needed to make a positive decision. And the only place I can see it earlier asking Miss N about this was on her claim form.
37. I note some delay from Miss N – from June to 11 October 2018 in providing information. And after December 2018 Miss N did not challenge things further until the Council removed her from the register in July. I need to take these delays into account when deciding an appropriate remedy.
38. The faults caused Miss N some uncertainty in not knowing whether she might have been rehoused earlier, but for the identified fault. Miss N told me she had bid on around eight properties that might have been suitable for her; and where her amended start date would have put her in a position to consider that suitability.

Agreed action

39. The Council has agreed to:
• Backdate Miss N’s Band B priority to 7 December 2018 – the date the Council received Miss N’s completed local priority form.
• Contact Miss N to discuss with her any reasonable adjustments to overcome any barriers she has to accessing the administration of her housing register application. This should include for example the bidding process. It needs to keep a record of any adjustments Miss N’s requests, and its response.

I understand from Miss N that the Council has now rehoused her. So these actions may be no longer relevant. I ask the Council to confirm whether Miss N’s housing register application is now closed?

40. The Council has also agreed to:
• Write a letter apologising to Miss N for the faults I have identified.
• Pay Miss N £200 as a token acknowledgment of the uncertainty caused by the faults I have identified.

I ask it to complete these actions within a month of my final decision.

41. The Council has agreed to take the following action (within three months of my final decision) to ensure it is meeting its legal duties under the Equality Act 2010:
• Remind staff of the need to provide reasonable adjustments and what adjustments are available.
• Review its systems and procedures to ensure any reasonable adjustments are agreed with customers and properly recorded.
• Review its systems and procedures to ensure service user’s records are routinely checked for records of reasonable adjustments whenever contact is initiated by either the Council or the customer.
42. We shall need to see evidence it has completed these actions.

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Final decision

43. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman