Summary: Miss C complains about the Council's decision that she is not eligible to join its housing register. Miss C says she cannot bid for more affordable accommodation and has spent unnecessary time and trouble in dealing with the issue. The Ombudsman has found fault by the Council in the way it applied criteria which were not included in its published scheme. The Ombudsman considers the agreed action of the Council amending its published policy to include the criteria with an apology and payment to Miss C is enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Miss C, complains about the Council's decision that she is not eligible to join its housing register. Miss C says because of the Council's fault she cannot bid for more affordable accommodation and has spent unnecessary time and trouble in dealing with the issue.

Back to top

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)

Back to top

How I considered this complaint

4. I read the papers provided by Miss C. I have considered some information from the Council and provided a copy of this to Miss C. I have explained my draft decision to Miss C and the Council and considered the comments received before reaching my decision.

Back to top

What I found

Background and legislation

5. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. 
6. All allocations must be made in strict accordance with the published scheme.  (Housing Act 1996, section 166A(1) & (14))
7. The statutory guidance ‘Allocation of accommodation: guidance for local housing authorities in England’, 2012 says at paragraph 4.1:

“Housing authorities are required by s.166A(1) to have an allocation scheme for

determining priorities, and for defining the procedures to be followed in allocating

housing accommodation; and they must allocate in accordance with that scheme

(s.166A(14)). All aspects of the allocation process must be covered in the scheme, including the people by whom decisions are taken. In the Secretary of State’s view, qualification criteria form part of an allocation scheme.”

8. Councils must notify applicants in writing of the following decisions and give reasons:

• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person;
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.

9. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))
10. The 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.

Key events

11. The Council’s allocation policy at paragraph 3.2b under the heading ‘Applicants not currently living within the Bristol City boundary’ says:

“In order to qualify to be included on HCB an applicant must be able to show that they have either been living within the Bristol City boundary continuously for the last 2 years immediately prior to the date of registration on HCB or they have close family currently living in Bristol who have lived in Bristol continuously for the last 2 years immediately prior to the date of registration on HCB and they need to live near that person to provide or receive care or that their normal place of work (paid employment and not voluntary work) is in Bristol."

12. Miss C applied to join the Council’s housing register as she works in the area and noted the allocation policy said she was eligible to apply.
13. The Council wrote to Miss C in early March 2019 to say it had considered her application but as she had not lived within the Bristol boundary for the last two years and did not have any exceptional reasons for needing to be rehoused she did not qualify to be included. The Council’s letter set out Miss C’s right to request a review.
14. Miss C sought a review of the Council’s decision that she did not qualify in mid-March. Miss C referred to the Council’s published policy as set out above and highlighted her normal place of work was in Bristol. Miss C enclosed her employment contract and payslips for January and February 2019. Miss C asked the Council to explain why she did not qualify in these circumstances.
15. The Council responded to Miss C’s review request at the end of April. This upheld the decision Miss C did not qualify as she did not live in the Bristol boundary area and referred to section 3.2b of its allocation policy which says a person must have lived in the boundary area continuously for two years immediately before applying for rehousing. The Council noted the online application stated Miss C had lived at an address outside the boundary since the end of January 2017 and so she did not meet the residency criteria. The Council accepted Miss C’s evidence of employment in Bristol and that this was her main place of work but explained that when considering if an applicant outside the boundary qualified to be included it would also consider if the place of work was a ‘commutable distance.’ The Council noted Miss C lived five miles from her place of work and was satisfied this was a commutable distance and so she did not qualify.
16. Miss C complained to the Council in mid-June about its decision. Miss C pointed out that its published allocation scheme did not say there were additional conditions to meet. The Council responded in early July to say its policy was publicly available but its processes and procedures were not available publicly. The Council stated that when looking at whether an applicant met the residency criteria through employment it considered a number of other factors including distance, time taken to travel to work, availability and affordability of transport, length of contract and the number of hours worked. The Council confirmed the reviewing officer had considered these factors in reaching the decision that she did not currently live in the Bristol boundary area and her current home address was a commutable distance to her place of work in Bristol with several options of transport available. The Council provided details of how Miss C could escalate her complaint.
17. Miss C escalated her complaint towards the end of July. The Council advised Miss C that despite its advice above the matter could not be considered further under its complaint policy as it related to the application of its policy which had an appeal process available which she had used and provided the contact details for the Ombudsman.

Analysis

18. The relevant legislation and statutory guidance are clear that there should be no hidden criteria and everything should be in the published scheme. The Council has confirmed it is applying additional criteria when looking at whether an applicant meets the residency criteria through employment including factors like distance and/or time taken to travel to work, availability and affordability of transport, length of contract and number of hours worked. None of this is in the Council’s published policy. This is fault.
19. The Council has confirmed to the Ombudsman that it does have additional criteria about employment and its location within the City Council boundary within its process. The Council says it does take into account reasonable time to commute to a place of work, by public transport. Although this information is within the Council’s procedure manual for application assessment it accepts such criteria should be publicly available. The Council has confirmed it will amend its published allocation policy to ensure this information is publicly available in future. The Ombudsman would welcome this action.
20. I must also consider the injustice caused to Miss C. The fault I have identified is the Council not including the extra criteria in its published policy. But for that fault, Miss C would have been aware of all the criteria when considering whether to apply and so would have been able to make a properly informed decision about whether to do so. Miss C may not have applied if she had realised she did not meet the criteria. In these circumstances, I consider the injustice to Miss C is her missed opportunity to make a properly informed choice and avoidable time and trouble in making the application, review request and complaint.

Agreed action

21. As already agreed above the Council should review its published allocation scheme and amend it to ensure any qualifying criteria are included within three months of my final decision.
22. The Council should also write to Miss C to apologise for her missed opportunity to make a properly informed choice and avoidable time and trouble in making the application, review request and complaint and pay her £200 to reflect this within one month of my final decision.

Back to top

Final decision

23. I have completed my investigation as I have found fault by the Council but consider the agreed action above is enough to provide a suitable remedy.

Back to top

Investigator's decision on behalf of the Ombudsman