Summary: The Council is at fault for the way it conducted medical assessments for housing and its reviews of those decisions. It also failed to ask the Housing Management Panel to consider if Mr X should have social propriety for housing. The delay in properly considering Mr X’s application has caused him injustice. The Council will apologise to Mr X, properly assess his application and make a payment for his time and trouble.

The complaint

1. Mr X complains the Council has not properly assessed his housing application and so not given it enough priority. Mr X says his family live in overcrowded conditions with inadequate toilet facilities.

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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. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, 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. I considered the information provided by Mr X and discussed the complaint with him. I asked the Council for information and considered what it provided.
6. Mr X and the Council had an opportunity to comment on a draft version of my decision. I considered their comments before making a final decision.

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What I found

Housing Allocations

7. Every local housing authority must publish an allocations scheme setting out how it prioritises applicants, and its procedures for allocating housing.  It must make all allocations in strict accordance with the published scheme.  (Housing Act 1996, section 166A(1) & (14))
8. 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))

9. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
10. Statutory guidance on the allocation of accommodation says: review procedures should be clear and fair with timescales for each stage of the process. There should be a timescale for requesting a review - 21 days is suggested as reasonable; the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker. Reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

The Council’s policy on medical and additional priority

11. The Council gives Band 1B to applicants with a medical or social priority. It gives Band 2A to overcrowded applicants.
12. The policy says:
13. “An officer in the Lettings Team will make decisions on medical applications and may ask qualified health advisers to recommend who should be given additional preference for housing on health or disability grounds. The health advisor does not make a recommendation based upon how ill you are. They will look at how your health or disability problem affects you on a day-to-day basis and how your housing affects your health or quality of life. They will assess each person with a health or disability problem and also consider the impact on your whole household. In addition, other nonmedical factors affecting you or members of your family can be taken into account where appropriate.”

14. “If you disagree with the Council’s decision following a recommendation by a health advisor, a review will be carried out by another health advisor who has not been involved in the first assessment of your application for priority on health grounds. The Council will make a final decision based upon the recommendation of the second health advisor.”
15. “There are times when an applicant may be considered for discretionary additional priority for unusual or urgent reasons that are not covered by the general criteria in the Allocations Scheme. The circumstances under which a discretionary priority award may be agreed are: Where an applicant has an exceptional need or where a combination of significant social/welfare/medical/safety or urgency factors occur that cannot be adequately dealt with within the normal rules of the Allocations Scheme. The Housing Management Panel will make all decisions to award discretionary additional decision.”

16. “When a surveyor employed by either the Council or partner landlord reports that it is not reasonable or possible for you to continue to occupy your home while repairs are being carried out, your application will be awarded an emergency priority and placed in Band 1.”
17. “Overcrowded applicants. This will be based upon an assessment and verification of your circumstances as stated on your housing application. A Lettings Officer will make this decision.”

Housing Act 1985

18. Sections 326 of the Act defines statutory overcrowding. In making the calculations a child under a year old does not count. A child aged between one and ten counts as half a unit. Living rooms and bedrooms count as rooms available to sleep in. Two people can sleep in a room of more than 110 square feet. When a property has two rooms, the maximum number of people who can sleep there is three. A breach of room and space standards is a category 1 hazard under the Housing Health and Safety Rating System.
19. The Ombudsman may not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
20. The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. He may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.

What happened

21. Mr X lives in a one bedroomed council flat with his wife and children. In 2018 Mr X had two girls aged over 10. Mr X has a medical condition which causes him to pass urine about thirty times a day. Passing urine takes Mr X a long time and causes him pain.
22. Mr X’s flat had severe damp caused by structural problems. One of Mr X’s daughters has asthma.

The medical assessments

23. In August 2018 Mr X applied for a medical priority. He provided medical information. He said his condition meant his children could not use the bathroom when they needed to and so often wet themselves and were late for school.
24. The Council sent the application to a private medical company (the Company) for an assessment. The Company did not accept Mr X needed a medical priority. It acknowledged Mr X had difficulties with the toilet but said he could use a urine bottle. The Company said overcrowding, disrepair and damp were not issues the Company could consider in an assessment.
25. In September 2018 Officer 1 recorded the Company’s decision and wrote to Mr X with the Company’s report saying: “our health advisor has made the following notes when making their decision.”
26. Mr X asked the Council to reconsider. He said he did use urine bottles but found it intolerable and unhygienic. He said it was also impractical to use urine bottles with two adolescent daughters and a wife all living in a one bedroom flat.
27. In January 2019 the Council asked the Company to assess. The Company made the same comments about overcrowding and disrepair. The Company said Mr X lives in accommodation with access to normal facilities. Officer 1 recorded the Company’s decision. Officer 2, a Team Manager, signed the letter to Mr X refusing medical priority. The letter includes the line: “our health advisor has made the following notes when making their decision.”
28. In February 2019 a Legal Advice Centre asked the Council to reconsider and provided more medical information. This included a letter from Mr X’s GP saying Mr X had the most severe case of unstable bladder he had seen. The Council asked the Company to assess. The Company said Mr X’s accommodation did not sufficiently adversely affect Mr X’s medical condition, so medical priority did not apply. Officer 1 recorded the Company’s decision and in May 2019 wrote to Mr X saying: “our health advisor has made the following notes when making their decision.”
29. The Advice Centre asked for a review of the decision. It included new information from one of Mr X’s daughter’s School about the effect on her. An MP also asked the Council to reconsider.
30. The Council again sent the application to the Company. The Company said the predominant issue was overcrowding. It said the family have access to all normal facilities and one toilet is generally suitable for a family off that size. It said the family had 2 rooms so Mr X did not have to pass urine in front of family members.
31. Officer 1 recorded the Company’s decision. In July 2019 Officer 2 signed a letter to Mr X giving the decision. The letter again says: “our health advisor has made the following notes when making their decision.”
32. None of the Company reports the Council has provided to me contain the name of the Medical Advisor who did the assessment.
33. On 24 July Mr X made a complaint about his housing application. He said the Council had not explained, with reference to the information he had provided, why he did not merit medical priority.
34. The Council replied on 23 August. It said the Council had not awarded Mr X medical priority and he should discuss this with Officer 1 and his solicitor.
35. Mr X was not happy with the response and asked the Council to consider his complaint at stage 2. The Council replied on 20 September 2019. It said Mr X’s housing did not effect his health condition. It said it had made its final decision on this and there was no further right of review.

Disrepair and overcrowding

36. The Council has awarded Band 2A overcrowded to Mr X’s housing application.
37. Mr X says his flat has had severe damp since 2016. In April 2019 the Council accepted Mr X’s flat suffered from major damp caused by structural problems.
38. In June 2019 the Council began work to hack off the plaster in all the rooms. Mr X asked for the work to stop as his daughter has asthma and his wife was pregnant. The School one of Mr X’s daughters attends wrote to the Council about the work. It said the flat was full of dust because of the removal of plaster and the walls need 4 to 6 weeks to dry out. The School said the flat was uninhabitable and adversely affecting the daughter’s health. The School asked the Council to move the family because of the severe overcrowding and the work.
39. The Advice Centre made a complaint about the work. It said was inexcusable the Council had not provided safe and suitable alternative before starting the work. It asked the Council to now provide accommodation.
40. On 24 July Mr X made a complaint about his housing application. He said he was overcrowded and referred to the Housing Act 1985. He also complained the Council had started work on his home without first offering alternative accommodation.
41. The Council replied on 23 August. It said Mr X had made a legal claim about the disrepair and he should contact his solicitor about this. It said it had inspected the flat and the work could be done around the family, by doing the work a room at a time.
42. The Council provided a hotel for the family for 5 days while it carried out work.
43. In September 2019 Mr X’s third child was born.
44. On 30 September 2019 a Health Visitor (HV) wrote to the Council about conditions in the flat. The HV said the one-bedroom flat was totally unsuitable for a family of five. The HV said the lounge was very small and Mr and Mrs X had to sleep on a mattress on the floor and the baby in a basket. The HV said when the mattress was on the floor there was no circulation room which put the baby at risk. The HV said the bedroom was also small and the older children slept in bunkbeds with no space for play or study. The HV asked the Council to move the family to accommodation suitable for a family of five.
45. The Council says the lounge and living room measure 16 square metres (172.22 square feet). It says both rooms can sleep two people. The Council does not accept the family are statutorily overcrowded

Findings

46. The Ombudsman cannot criticise a decision a council takes without fault. If there is fault in a decision, the Ombudsman can ask the council to reconsider. In this case the Council’s decisions on priority are affected by fault.
47. The Council must make its own decisions on the priority it gives to housing applications. It can ask the advice of the Company, but the advice given is only one factor in its decision making.
48. There is no evidence any Council Officer considered the information provided by Mr X. In each of the four decision letters the Council simply prints out the Company’s assessment. Each letter clearly says the Company took the decision. This is fault.
49. There is no evidence the Council considered the effect of the housing on Mr X’s children.
50. There is no evidence the Council followed Government Guidance or its own policy when carrying out the reviews. The Company assessments do not have the advisors names so it is not possible to say if a different advisor conducted the review. Although Officer 2 is senior to Officer 1 there is no evidence Officer 2 considered the reviews. Officer 1 uploaded the information from the Company. There is no evidence Officer 2 looked at the information provided by Mr X and the Advice Centre.
51. The Local Government and Social Care Ombudsman cannot investigate complaints of disrepair in social housing. The Housing Ombudsman deals with such complaints. The Local Government and Social Care Ombudsman can consider if the Council took disrepair into account when assessing a housing application. I have seen no evidence the Council considered disrepair when considering Mr X’s application.
52. The Council accepts Mr X is overcrowded but does not accept he is statutorily overcrowded. It says the size of the two rooms can sleep 4 people. Due to current circumstances I am not able to check the Council’s measurements. The measurements provided do not match the description of the flat given by Mr X and the HV.
53. Even if the Council’s measurements are correct Mr X is statutorily overcrowded. The flat should accommodate a maximum of 3 people over 10. Before September 2020 there were 4 people over 10. When Mr X’s youngest child turned one year old in September 2020 that number rose to 4½.
54. The Council’s allocation policy says where a combination of significant social/welfare/medical/safety or urgency factors occur, the Housing Management Panel can decide to award discretionary additional priority. Mr X has a health condition, the School and HV have told the Council the effect this has on his children. Mr X’s flat had severe disrepair. Mr X is statutorily overcrowded. I have seen no evidence the Council considered referring this the Housing Management Panel. This is fault.
55. The Council did not respond properly to Mr X’s complaints. It did not explain how it reached its decision on medical priority and what account it took of Mr X’s evidence. It did not respond to Mr X’s questions about being statutorily overcrowded.
56. The Council has caused injustice to Mr X as he has waited two years for the Council to properly consider his housing application.

Agreed action

57. To put matters right for Mr X within one month of my final decision the Council will:

• Apologise to Mr X
• A senior housing manager, not previously involved in the medical assessments should reconsider all the information available and reach a new decision. If this does not lead to the award of medical priority, the Council should refer the case to the Housing Panel for it to consider all the circumstances Mr X and his family live with.
• Pay Mr X £250 for his distress, time and trouble.

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Final decision

58. The Council is at fault and has caused injustice to Mr X. The Council has agreed to provide a remedy for this. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman