Summary: Mrs X complained about the Council’s housing allocations scheme and its decision not to award her housing priority. The Ombudsman found no fault in the way the Council considered Mrs X’s housing priority. The Ombudsman found fault in the way the Council communicated its decisions. It is not the role of the Ombudsman to say whether Council policy is unlawful or discriminatory. These are matters for the Courts.

The complaint

1. Mrs X complained about the Council’s housing allocations scheme and its decision not to award her housing priority. Mrs X has psychological health needs. She believes the Council’s allocations scheme prioritises physical health needs, which she thinks is discriminatory.
2. Mrs X does not think the Council’s allocations scheme gives equal weight to mental health conditions. She said her mental health condition is long term and her overcrowded housing situation affects her daily life. She has no appetite and takes little pleasure or interest in doing things. She would like the Council to reconsider her application.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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 following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Council’s Housing Allocations Scheme.
• The Housing Act 1996.
6. Mrs X and the Council now have an opportunity to comment on my draft decision.

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What I found

7. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. Councils must follow their published scheme.
8. Councils have some discretion to decide which people deserve priority in their area. However, 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.
9. As part of good practice, the Ombudsman expects to see clear allocations policies and clearly written decisions which explain the information considered and the reasons for the decision. We expect to see evidence an applicant’s medical priority has been considered and whether there are any exceptional circumstances. Councils should also tell applicants about their right to ask for a review of the decision.
10. The Council’s housing allocations scheme has three priority bands. Band 1 is high priority housing need, Band 2 is priority housing need, and Band 3 is general housing options.
11. Within Band 1 there are groups A and B. Group A is for things like emergencies and medical need for ground floor or wheelchair accessible homes. Group B is for things like priority medical needs, priority social needs, and priority target groups.
12. Within Band 2 there are also groups A and B. Group A is for overcrowded or homeless applications. Group B is for applicants with housing need without a local connection.
13. The Council will only award priority on health grounds if someone has:
• A severe long-term limiting illness, or
• A permanent and substantial disability, and
• Their health or quality of life is severely affected by the home they live in.
14. The Council’s allocations scheme says officers will ask qualified health advisors to recommend who should be given added preference on health and disability grounds.

What happened

15. Mrs X lives in a one bedroom flat with her husband and two infant children. The flat has an open plan kitchen/living room.
16. In 2017, the Council awarded Mrs X Band 2A priority because of overcrowding. Her priority date was 29 November 2016.
17. In May 2017, Mrs X asked the Council why it only gave priority for a two-bedroom home when there are four family members living in a one bedroom flat.
18. In June 2017, the Council confirmed Mrs X was in the correct priority band. It said the family only need two bedrooms because their children are the same sex and can share a bedroom.
19. Mrs X wrote to the Council in November 2017 providing opinion from their family support worker. The support worker expressed concerns about the family living in a one-bedroom flat which did not have enough space for the children to learn to walk and develop. They said the living room has no windows, only a balcony for ventilation, and Mrs X felt isolated.
20. The Council responded in December 2017. It confirmed it placed Mrs X in Band 2A because of overcrowding. There were more people on the waiting list than homes available and the average wait time was 5 to 6 years.
21. Mrs X wrote to the Council in February 2018 providing evidence from her doctor. The doctor said Mrs X was emotionally overwhelmed and showed symptoms of moderate to severe depression and anxiety. She also shows chronic mental and physical exhaustion. She had been attending psychology sessions since January 2018. The doctor asked for a review of Mrs X’s housing priority considering mental health and child development needs.
22. The Council’s medical adviser, Assessor A, considered Mrs X needs in April 2018. They recognised her history of depression and anxiety but said there was no evidence of permanent disability or severe long-term limiting illness.
23. The Council wrote to Mrs X in May 2018 to confirm the result of her medical assessment. It decided Mrs X did not have a permanent and substantial disability or severe long-term limiting illness.
24. Mrs X asked for an independent review of the Council’s decision in June 2018, including contacting her doctor. She said:
• The decision was not fair and transparent.
• Her housing situation had a direct impact on her health and is heightening her condition.
• She felt trapped in a confined space.
• The Council had not considered the impact on her spouse and children.
25. A different medical adviser, Assessor B, considered Mrs X’s application in June 2018. Assessor B recognised Mrs X did have a permanent and substantial disability or severe long-term limiting illness. However, he did not think Mrs X’s current home severely affected her health or quality of life. He considered the issue to be about overcrowding.
26. The Council wrote to Mrs X with the result of its reassessment. It confirmed it had not awarded added priority.
27. In October 2018, Mrs X made an application for rehousing on health grounds. She said she had depression and anxiety due to overcrowding. She provided evidence of an increased personal independence payment due to her condition, and a letter from her psychotherapist, who said her living conditions affected her mental health and well-being.
28. In November 2018, the Council’s medical adviser, Assessor A, completed Mrs X’s assessment. They considered Mrs X was not suffering from a permanent and substantial disability or severe long-term limiting illness. They do not usually consider overcrowding and noise or environmental reasons when deciding medical priority.
29. The Council wrote to Mrs X with the result of her health grounds assessment. It did not award added priority because Assessor A did not consider she suffered from a permanent and substantial disability or severe long-term limiting illness. It did not consider overcrowding was a medical matter and has its own priority.
30. Mrs X’s husband complained to the Council about its decision in February 2019. He referred to the Council’s scrutiny challenge report from 2013, which found the housing process favoured physical health conditions over mental health. He said the Council treated Mrs X less favourably because of her mental health condition.
31. The Council responded to the complaint in March 2019. It said its health advisers considered Mrs X’s medical forms but decided there was no evidence of permanent disability or severe long-term limiting illness. It considers overcrowding separately and it has its own priority. The threshold for medical priority is high. That does not mean Mrs X does not have a health issue, but she did not meet the high threshold.
32. Mrs X questioned the Council’s response. She disputed its decision not to award medical priority and said it did not address several issues.
33. The Council sent its final complaint response in May 2019. It said:
• Before adopting its current allocations scheme in 2016 it undertook a full equality impact assessment. The scheme is fully complaint with equalities legislation. It treats all applications equally and gives them proper consideration.
• It did not receive Mrs X’s appeal she said she sent on 25 March 2019, and so it could not consult other professionals about her condition as she asked. It asked her to send the appeal again.
• It held several meetings with mental health professionals and service users after the scrutiny challenge session in 2013, but it received no suggestions on how to improve the health assessment form.
34. Mrs X complained to the Ombudsman in September 2019. She said the Council should consider mental health the same as physical health, but it was insensitive, ignorant, and unfairly discriminated against her by failing to understand the effect of mental health.
35. Also in September 2019, Mrs X filed a medical assessment appeal form. She said her medication dosage was increased and there had been a family breakdown because of her a mental health condition caused by overcrowding. She said her twins were seeing a behavioural psychologist as she could not carry out strategies due to depression. She also said there was an intervention from Mind, the mental health charity. Mrs X provided a letter from her health visitor, who said there was a lack of space for toddler beds or children’s toys. This impacted the development of Mrs X’s children.
36. In October 2019, the Council’s medical adviser, Assessor B, considered Mrs X’s assessment form. Assessor B again decided Mrs X does have a permanent and substantial disability or severe long-term limiting illness. However, again, he did not consider Mrs X’s home severely affected this. He considered the issue to be overcrowding and said Mrs X has two rooms available to use, which could be configured for maximum use.
37. The Council wrote to Mrs X in November 2019 with the result of her re-assessment. It confirmed it had not awarded any added priority. The Council does not usually consider matters such as overcrowding, noise and environmental reasons, anti-social behaviour, lift breakdowns, disrepair and damp when assessing medical priority. They are not health issues.

Response to my enquiries

38. The Council told me its allocations scheme is not prescriptive about health grounds and it does not have a list of health problems considered permanent or severe. The Council considers each application on its own individual circumstances. It looks at:
• Whether there is a long-term health condition.
• What impact an applicant’s current home is having on the household due to their health condition.
• Whether the applicant’s mental health is severely impacted by their current home.
39. The Council recognised Mrs X had a long-term health condition based on the medical application and appeal forms she put in. It accepts its decision letter does not properly explain how it considered mental health and its rationale for not granting medical priority. The Council offered to re-assess Mrs X’s medical priority.
40. Following its 2013 scrutiny challenge report, the Council held several focus groups with residents and stakeholders. The Council invited attendees to suggest how it could improve the health assessment form. The attendees did not have any suggestions, so the form remained the same.

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Analysis

41. The Ombudsman is not an appeal body. We cannot make decisions to replace the Council’s. Our role is to review the Council’s decision-making process to ensure its decisions were made properly.
42. The Council gave Mrs X priority she was entitled to for overcrowding in line with its allocations scheme. Priority for overcrowding does not attract the highest priority banding in the scheme however, and Mrs X could not secure a move. Mental or physical health conditions can attract a higher priority than overcrowding.
43. I have seen the assessment forms considered by Assessors A and B. Both assessors considered Mrs X’s medical evidence, which includes her history of depression and anxiety, and the issue of overcrowding, when they gave their opinion.
44. Assessor A did not think Mrs X’s mental health condition was a permanent and substantial disability or severe long-term limiting illness. They thought the issue was about overcrowding, which Mrs X already had priority for. Based on that advice, the Council did not offer added priority. Mrs X may disagree, but the Council was entitled to make that decision after considering all the evidence. I have not seen evidence of fault in the way the Council reached this decision.
45. Assessor B did consider Mrs X had a permanent and substantial disability or severe long-term limiting illness. However, they did not think this was severely affected by Mrs X’s housing conditions. They also believed the issue was about overcrowding, which was separate. The Council did not offer added priority. Again, the Council was entitled to reach that decision and I have not seen evidence of fault in its consideration.
46. The consistent view of the Council’s health adviser’s is that Mrs X’s issue is overcrowding. Both doctors who carried out health assessments said overcrowding, and other environmental reasons present at the home, were not relevant medical considerations. They consistently said overcrowding has its own separate priority status.
47. I can understand Mrs X’s argument that issues like overcrowding and anti-social behaviour are having a negative impact on her mental health condition. The relevant question under the Council’s allocations scheme is to what extent and whether the impact is ‘severe’. The Council told me it is a high threshold. In this case, the Council and its assessors did not feel the threshold was met. Ultimately, this is at the Council’s discretion under its allocations scheme. I have not seen evidence to suggest the Council did not consider Mrs X’s mental health conditions, or that her application was looked on less favourably than a physical condition.
48. While the Council did tell Mrs X what its decisions were, I do not consider it went into enough detail to explain the reasons in its decision letters. It did not say what it, or its medical assessors, thought about Mrs X’s mental health condition or what impact her home environment was having. The Council recognised this. That was fault.
49. I have not seen evidence the Council’s allocations scheme is discriminatory. Before the Council adopted the scheme in 2016, it carried out an equality impact assessment, which I have seen evidence of.
50. I recognise the Council’s scrutiny challenge report from 2013 highlights concerns about the health assessment form used as part of the allocations. As we would expect, the Council held meetings with mental health professionals and service users to discuss the concerns. This may be something the Council can revisit in light of Mrs X’s complaint.
51. It is not the role of the Ombudsman to say whether Council policies are unlawful or discriminatory. These are matters for the Court.
52. If Mrs X feels there are systemic problems, that Council policies are discriminatory, or she has been discriminated against, she can complain to the Equality and Human Rights Commission or take action in the County Court.

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Agreed Action

53. Within four weeks of my final decision, the Council agreed to:
• Apologise to Mrs X for not clearly explaining the reasons for its decisions about her medical priority.
• Arrange a new assessment of Mrs X’s medical priority.
• Review the way allocations and medical priority decision letters are produced to ensure decisions are clearly explained to applicants.

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Final decision

54. I have completed my investigation. There was no fault in the way the Council considered Mrs X’s housing priority. There was fault in the way the Council communicated its decisions. It is not the role of the Ombudsman to say whether Council policy is unlawful or discriminatory. These are matters for the Courts.

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Investigator's decision on behalf of the Ombudsman