Summary: Ms X complained about the way the Council handled her housing application and, in particular, it failed to properly consider her medical needs. As a result she says she was placed in the wrong priority band on the housing register. The Council was at fault for delays in the process and failings in its decision-making. It should apologise, pay Ms X £150 for the avoidable distress and uncertainty caused, and review its processes.

The complaint

1. Ms X complained about the way the Council handled her application to its housing register and, in particular, that it failed to properly consider her medical needs. She also complains the housing officer was rude and obstructive, and ignored emails from her and her midwife, and referred her to the wrong Ombudsman service.
2. Ms X says that as a result of the Council’s faults she was placed in priority band 2 and not priority band 1, which means she would have to wait longer for a suitable property. She also suffered avoidable distress whilst pregnant and after giving birth to her first child.

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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 considered:
• The information Ms X and the Council provided.
• Relevant law and guidance, as set out below.
• Our guidance on remedies.
7. Ms X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Housing allocations

8. 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))
9. 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))

10. The council must write to the applicant with its decision, setting out its reasons and explaining their right to request a review of the decision.

Tower Hamlets allocations policy

11. This Council prioritises applications to its housing register using three priority bands. Band 1 is the highest priority and includes those who are prioritised for housing based on medical needs. Band 2 is the next priority level and includes those who live in overcrowded accommodation or who are homeless. Both of these bands are divided into groups A and B. Those in group A within the band have priority over those in group B. Band 3 includes those with no defined housing need.
12. The allocations policy sets out the criteria for each band and the groups within them. In relation to priority on medical grounds it says:
• Medical priority “is not given on the basis of the medical condition or disability alone but upon the effect the housing circumstances are having on a long term and serious medical condition or disability”
• Officers will make decisions based on medical evidence and may seek advice from health advisors “to recommend who should be given additional preference on health and disability grounds”
• Recommendations “are not based on how ill you are but on how your health or disability affects you on a day-to-day basis and how your housing affects your health or quality of life”. This will include an assessment of the individual and will consider the impact of their health or disability problem on the whole household.
• Medical priority is awarded for a severe long term limiting illness or permanent and substantial disability. The applicant’s “health or quality of life must be severely affected by the place [they] live in now”
13. Applicants can bid for available accommodation, which is allocated according to the priority band and group, and the applicant’s priority date. The priority date is the date their application was accepted or was effective from (if back-dated) so those with the earliest priority date have priority over those with a later priority date.

Complaints handling

14. This Council’s complaints’ process has two stages. The Council hopes to resolve all complaints at stage 1. At stage 1 a manager or divisional director will respond in writing within 20 working days. If the complainant is not happy with the stage 1 response they can ask for a final review. At this second stage a senior officer will respond in writing within 20 working days. If it cannot respond within 20 working days at stage 2 the process says the Council will explain why.

What happened

15. Ms X made an application to the housing register in 2017. The Council accepted her application and awarded Band 3 with effect from August 2017. Band 3 indicates a person is adequately housed.
16. Ms X made a fresh application in early December 2018. She told the Council she was pregnant, that she suffered from anxiety and depression, and had been referred to a specialist midwifery team for vulnerable women. In mid January 2019 the Council acknowledged receipt of her proof of pregnancy and asked for proof of residency. It returned her application to her in February 2019 because some sections of the form were not completed. Ms X was asked to provide documents to support the application, which she provided in March and April 2019. This included a letter from the midwifery team.
17. Ms X made a formal complaint in late March. She said the housing officer was rude and obstructive, and had ignored emails from her and her midwives trying to provide information to support her application. She was also unhappy with the delay in dealing with her application. She wanted an immediate offer of accommodation.
18. The Council responded in late April. It apologised if the officer had come across as rude. It said the application had now been assessed and a separate letter would be sent to confirm that.
19. On the same day, it wrote to confirm it had awarded Ms X Band 2A on its housing register effective from February 2019. It sent a medical form for completion. Ms X did not agree with the decision and complained again in early May.
20. Council records show it received the completed medical form and supporting documents on 22 May 2019. This included an undated NHS letter confirming Ms X had been referred to a midwifery team for vulnerable women due to a diagnosis of severe depression and anxiety. The NHS letter said she should be a priority for housing on health grounds.
21. A week later the Council responded at stage 2 of its complaints process.
• It apologised for the delay in responding to the complaint at stage 1.
• It accepted its handling of the application fell below the level of service expected. It would discuss the case with managers and the officer who handled the application.
• It had amended the priority date to 8 December 2018 and would send a separate letter to confirm this. It confirmed Ms X had not lost out on an available property as a result of this error.
22. A few days after that, the Council confirmed it had received the request for additional priority on medical grounds and was now assessing this. The records show it referred the case to its medical adviser in late May. It is not clear which supporting documents were sent to the medical adviser.
23. The Council sent a decision letter in mid July 2019, which stated it had considered the application and the supporting documents, including the NHS letters. It said the main issue was overcrowding, which was made worse by the recent increase in family. Overcrowding attracted its own priority. No additional priority was awarded on medical grounds.
24. Ms X disagreed with the decision. She wrote to the Council in early August, saying it had not properly considered the way in which her long standing medical conditions and overcrowded situation had combined to affect her health and quality of life.
25. In late September, the Council sent her a medical assessment appeal form for completion. Its records show the completed form was received in late October. It confirmed it would now consider the request for a review. It referred the case again to its medical adviser.
26. Ms X complained to us in mid November 2019. Shortly afterwards, the Council wrote to Ms X to say it had completed the review but had decided not to award any additional priority. Its medical adviser noted her mental illness but considered the main issue was overcrowding, which attracted its own priority.
27. In response to my enquiries, the Council said:
• It investigated the complaint its officer was rude and apologised. But it does not record telephone calls so could not comment further.
• The original error with the priority date was an administrative error by the officer. Officers are “constantly” reminded of the need for accuracy and the importance of ensuring priority dates are correct. It sent a letter to Ms X to confirm the correct date on 31 July 2020 and apologised for not doing so at the time of the complaint response.
• Priority on health or disability grounds will only be awarded “if someone in the household has 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”. Both of these have to apply before additional priority is awarded. “The Council generally does not consider overcrowding when assessing for medical priority as this attracts its own priority”.

My findings

Housing application - officer rude and obstructive

28. Ms X says the officer was rude and obstructive. When she complained about this the Council investigated and in its complaint response, it apologised if the officer came across as rude. I cannot establish from the evidence available whether the officer was rude but the Council has apologised and this was appropriate.

Incorrect priority date

29. The Council accepted it made a mistake with the priority date. This was fault. On identifying the problem, it amended the date. This was appropriate. It should have written to Ms X to confirm the correct priority date as it said it would do in its complaint response. It did not do so until July 2020. However, I do not consider that warrants a further finding of fault since it told Ms X what the priority date would be in its complaint response and I have seen no record she queried that.

Delays in the process

30. It took from early December 2018 until November 2019 to conclude the assessment of the application, including the request for a review, which is considerably longer than I would expect to see.
31. This appears to be because the officer requested information piecemeal rather than considering at the outset what was needed and requesting it in one go. I note that there were short delays in Ms X providing the documents requested. There was a delay in responding to the request for a review between early August and late September, although no delay in concluding the review once the completed form and supporting documents were received in late October 2019.
32. Overall, I consider the assessment was inefficient and took longer than it should have. The Council, in its stage 2 response, acknowledged its handling of this application had fallen below its usual levels of service. This was fault. This caused avoidable distress and frustration for Ms X.

Ignoring emails

33. Ms X has provided evidence to show there was some delay in responding to emails but I do not consider this warrants a further finding of fault.

Considering medical priority

34. It is not clear whether the medical priority was properly considered between May and mid July 2020. The decision letter confirms the Council considered the NHS letters. It says the main issue is overcrowding, which has already been taken into account. It does not explain why Ms X’s mental health conditions are not sufficient to warrant additional priority.
35. It is not my role to say whether the Council made the correct decision. However, I can consider whether there is fault in the decision-making process, and, if so, whether this was remedied by the review decision.
36. On review, the medical adviser noted her mental illness but said “the issue in this case is overcrowding”. In its decision letter the Council stated: “Our Health Advisor has made the following notes when making their decision” and goes on to quote from the form the medical adviser completed. It does not explain why Ms X’s mental health conditions were not sufficient to warrant additional priority.
37. I consider the Council has not properly explained its reasons for deciding Ms X does not qualify for medical priority. It is also unclear whether the Council requested or considered any medical information from Ms X’s G.P when considering if she qualified for medical priority.
38. Further, it appears from the records the Council has simply accepted the view of its medical adviser. The Council should make its own decision, taking into account all the evidence, including any advice from its medical adviser. The medical adviser should not be making the decision.
39. For all these reasons, I consider there was fault with the decision-making process. This has caused uncertainty for Ms X about whether the application was properly considered.

Complaints handling

40. Ms X complained about delays in responding to her complaint. The Council received her complaint on 22 March 2019 and responded on 26 April, 24 working days later. Its complaints process says it will respond within 20 working days. This delay is not sufficient to warrant a formal finding of fault and the Council has apologised, which would be an appropriate remedy for any injustice caused.
41. Ms X made a stage 2 complaint on 7 May 2019 and the Council responded on 22 May 2019, which was 15 working days later. Its policy says it will respond at stage 2 within 20 working days. It was not at fault.
42. Ms X says the Council referred her to the wrong Ombudsman at the end of the complaint investigation. The stage 2 complaint response dated 29 May 2020, correctly states if she was dissatisfied with its response she should complain to us. I have not seen any evidence to show the Council wrongly signposted her to the Housing Ombudsman. The Council was not at fault.

Agreed action

43. The Council will, within one month of the date of the final decision:
• apologise to Ms X for its delay in assessing her housing application and for failings in its decision-making process;
• pay her £150 for the avoidable distress and uncertainty caused by those failings; and
• offer to carry out a fresh review of its decision not to award medical priority, taking into account any further evidence Ms X wishes to provide. It should make its decision within 8 weeks of receiving the relevant information from Ms X and write to her to confirm the reasons for that decision.
44. The Council will, within three months of the date of the final decision, review its processes to ensure:
• it requests all the information it needs to consider an application at the earliest possible stage to avoid delays in the assessment process;
• it makes its own decision on medical priority, based on all available evidence, including the medical adviser’s views; and
• it properly explains its reasons for deciding not to award medical priority.
45. The Council will report to us, and provide relevant evidence to show the steps it has taken to implement these recommendations.

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Final decision

46. 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 the faults identified.

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Investigator's decision on behalf of the Ombudsman