Eastleigh Borough Council (19 017 155)

Category : Housing > Allocations

Decision : Upheld

Decision date : 10 Feb 2021

The Ombudsman's final decision:

Summary: Miss X complains the Council failed to consider properly her banding review request and awarded her the incorrect priority banding. Miss X says this meant she was living in unsuitable accommodation with her family, which has caused her distress and affected her mental health. The Ombudsman finds fault in the way the Council explained its decision to Miss X, and for failing to properly assess her banding priority on health and welfare grounds. To remedy the injustice caused, the Council has agreed to apologise and make Miss X a payment for the distress and uncertainty caused.

The complaint

  1. The complainant, who I shall refer to here as Miss X, complains the Council:
      1. has not considered properly her banding review request; and,
      2. has awarded her the incorrect priority banding.
  2. As a result, Miss X says she and her family are living in unsuitable accommodation causing them distress. Miss X says the Council’s actions have had a significant impact on her mental health conditions. She also says the issues have adversely affected her relationships within her family and may cause a decline in her mental health.

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What I have investigated

  1. I have investigated Miss X’s complaint about the Council’s review of her banding and its decision on her priority banding. The last section of this decision statement explains my reasons for not investigating issues raised that relate to action taken by the Council due to disrepair of the property.

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The Ombudsman’s role and powers

  1. 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)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. 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. 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)
  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

  1. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint.
  2. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Housing allocations

  1. 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))
  2. 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, including grounds relating to a disability; and,
  • people who need to move to avoid hardship to themselves or others.

(Housing Act 1996, section 166A(3))

  1. A council’s allocation scheme must include a statement on the housing authority’s policy on offering people a choice of accommodation or the opportunity to express preferences about the accommodation to be allocated to them. (Housing Act 1996, s.166A) It is for housing authorities to determine their policy on providing choice or the ability to express preferences.
  2. 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.

Eastleigh Borough Council’s allocations policy

  1. Eastleigh Borough Council prioritises applications to its housing register using the following four priority bands:
  • Band 1 is the highest priority and is for applicants who the Council considers as emergency cases (usually because of health or welfare reasons).
  • Band 2 is the next priority level and includes those who need to move due to overcrowding by two bedrooms, serious disrepair or high medical or welfare grounds.
  • In cases of possible serious disrepair for Band 2 priority, an environmental health officer will carry out an assessment to check whether there are any Category 1 hazards under the Housing Health and Safety Rating System (HHSRS). The policy does not elaborate on the HHSRS, but this refers to a risk-based approach for assessing different hazards associated with poor quality housing. It includes consideration of matters such as damp and mould. Category 1 hazards are the most serious. Councils have legal powers to require landlords or property owners take immediate action to remedy these.
  • The policy states Band 2 priority based on high medical or welfare reasons is for applicants whose current housing conditions are detrimental to health and interfere with their quality of life to a high degree.
  • Band 3 includes those who need to move because of overcrowding by one bedroom or medium medical or welfare grounds.
  • Band 4 is the lowest priority banding and includes applicants who are assessed as having low medical or welfare grounds for moving.
  1. The Council’s allocations framework sets out the criteria for each band and the groups within them.
  2. When applicants join the housing register list, the Council will assess the make-up of the applicant’s household. The size and make-up of the household will determine the assessed bedroom need.
  3. The Council looks at the following factors when deciding if the applicant needs to move because of overcrowding:
      1. a single person aged 16 or over requires one bedroom;
      2. a couple requires one bedroom;
      3. two children of a different sex, where one is aged 10 or over, require two bedrooms;
      4. children of the same sex can share a bedroom until 16 years of age;
      5. one room will be classified as a living room; all other rooms (except bathrooms and kitchens) will be classified as bedrooms provided they are suitable as sleeping accommodation; and,
      6. rooms measuring less than 4.6 square metres (50 square feet) will not be counted as a bedroom.
  4. Applicants can bid for available accommodation, which is allocated according to the priority band and the applicant’s priority date.
  5. The Council’s allocation framework says it is fully committed to “enabling applicants to play an active role in choosing where, and in what property type and tenure in which they wish to live, while continuing to house those applicants in the greatest housing need and complying with all relevant legislation.”
  6. Applicants have a right to request a review of any decision made by the Council under its allocations framework. Applicants must request a review within 21 days of the Council’s decision letter.

What happened

  1. In November 2018, Miss X contacted the Council about the two-bedroom house she and her family were living in. She told them she would like the Council to look at her banding as her household members had recently increased. This meant her house was overcrowded.
  2. The Council spoke with Miss X to tell her, based on the make-up and size of her household, it had decided she needed a four-bedroom property. Miss X asked whether the Council could override her bedroom need so that she could bid on three-bedroom properties. Miss X explained she was concerned about whether she could manage the rent of a four-bedroom property.
  3. The Council told Miss X that it could override her bedroom need, but highlighted that this would mean a three-bedroom property would still be overcrowded. It said that it was not able to consider her for both four and three-bedroom properties so she would need to decide which property size she would like to be considered for.
  4. After Miss X confirmed she would prefer to be considered for four-bedroom properties, the Council wrote to confirm she had been awarded a Band 2 priority due to overcrowding by two bedrooms. It gave her an estimated waiting time of four months for a suitable property given the amount of time she had already been on the housing register.
  5. In February 2019, Miss X successfully bid on and moved to a three-bedroom house with a conservatory. Miss X said the conservatory was the main reason she bid for the property as she thought the additional space would sufficiently accommodate her family. The Council awarded Miss X with Band 3 priority as she was living in a three-bedroom house that was overcrowded by one bedroom.
  6. In September, Miss X complained to the Council about the condition of the house, including various disrepair issues and problems with the conservatory. A Council officer specialised in housing enforcement visited Miss X’s house mainly to inspect the issues with the conservatory.
  7. Later in September, Miss X applied to re-join the Council’s housing register. She stated in her application that she was applying because of:
  • the poor condition of the house and disrepair issues, and,
  • the affect of these issues on her mental health.
  1. In October, a Council officer specialised in housing enforcement wrote to Miss X with the findings of the conservatory inspection from September. The officer explained he had carried out a Housing Health and Safety Rating System Assessment (HHSRS) under the hazard of “Personal Hygiene, Sanitation and Drainage”. This hazard includes threats of infection and to mental health associated with personal hygiene, including sanitation and drainage. The officer said he considered the issues with the conservatory amounted to a low Category 2 hazard.
  2. The officer explained the Council only has a duty to take enforcement action when dealing with a Category 1 hazard. The officer said, however, it has a power, not a duty, to take enforcement action for Category 2 hazards if it decides to do so. In Miss X’s case, the officer explained the Council would not need to take any further action based on the following reasons:
  • he considered the best course of action would be for the conservatory to be removed. Miss X wished for it to be replaced, but her social housing provider had explained why it was not willing to do so. However, the officer said the social housing provider had offered to compensate Miss X for this and she had separately had the matter considered by the Housing Ombudsman;
  • the officer, therefore, decided no further action was necessary as he did not believe that the landlord had failed to act to correct the defect and he did not consider the hazard presented a risk to life.
  1. Later in October, Miss X wrote to the Council to ask it to review her banding. She provided a list of issues with the condition of the house, which included disrepair issues and concerns about the conservatory. She said the ongoing problems had significantly impacted her existing mental health conditions and family relationships. She provided details of her existing mental health conditions and medication taken to manage these. Miss X said she would not have accepted the property if she had known about the issues with the conservatory.
  2. In December, the Council wrote to Miss X with its decision about her review request. It decided to continue to place Miss X in Band 3.

Analysis – was there fault by the Council causing injustice

The Council’s consideration of Miss X’s banding review request

  1. Miss X complains the Council has not considered properly her banding review request (part a of the complaint).
  2. Miss X says she should receive a higher priority banding than Band 3 due to the disrepair issues with her house.
  3. As explained in paragraph 15 above, the Council’s allocations policy states ‘serious disrepair’, for the purpose of qualifying for Band 2, applies to homes that have Category 1 hazards. It says an environmental health officer will carry out an assessment to check whether there are any Category 1 hazards.
  4. The evidence shows a Council officer specialised in housing enforcement inspected Miss X’s property in September 2019. The officer found no Category 1 hazards under the Housing Health and Safety Rating System and wrote to Miss X explaining this. The officer confirmed the issues with the conservatory amounted to a Category 2 hazard.
  5. In the Council’s review of Miss X’s banding, it considered the housing enforcement officer's assessment that no Category 1 hazards existed when deciding Miss X did not qualify for Band 2 priority based on grounds of serious disrepair. This is in line with the Council’s allocations policy. I understand that Miss X is unhappy with the Council’s decision and, in particular, the condition of the conservatory. However, as explained in paragraph six above, without evidence of fault in how the Council made its decision, I cannot question the content. I, therefore, do not find the Council at fault here.
  6. However, I do find the Council at fault for failing to properly explain the Band 2 ‘serious disrepair’ criteria to Miss X and set out clearly why the absence of any Category 1 hazards was key to its review decision. This caused Miss X uncertainty and she went to time and trouble complaining about this decision.
  7. In Miss X’s review request, she also said the condition of her house was having a significant impact on her existing mental health conditions and family relations.
  8. In the Council’s review decision, it acknowledged that Miss X’s housing situation had placed her under stress. It said it had considered the letter provided by Miss X’s support worker stating Miss X’s housing situation was having a serious impact on her recovery. However, the Council decided the impact on Miss X’s health and welfare was of a temporary nature because the issues with her housing had either been resolved or were resolvable. It, therefore, refused to award Miss X additional priority on health and welfare grounds.
  9. As explained in paragraph 15 above, the Council’s housing allocations policy awards Band 2 priority based on high medical or welfare reasons when the applicant’s current housing conditions is detrimental to health and interferes with their quality of life to a high degree. The policy states the following two conditions must be met to qualify for additional priority on health or welfare grounds:
      1. the applicant’s condition must be made worse by their current housing, and,
      2. the applicant’s health or welfare must be likely to be improved by moving to alternative accommodation.
  10. If these conditions are met, the policy states the Council will send the applicant a health and welfare assessment form, which will be considered by a panel of two Council officers from its housing service. The Council may organise for an independent medical advisor to meet with the applicant.
  11. In its review decision, the Council did not explain the conditions Miss X needed to meet for it to award her Band 2 priority based on high medical or welfare grounds. The Council instead decided the issues with Miss X’s house were temporary and so she did not qualify for additional priority on health and welfare grounds. However, the Council failed to identify a timeframe by which it expected the remedial action to take place. It failed to clearly explain why this also meant Miss X’s situation did not meet the two conditions detailed in paragraph 41 above. It did not explain whether and to what degree it considered Miss X’s housing condition interfered with her qualify of life. This is fault.
  12. The Council did not define “additional priority” in its review decision or explain whether it had assessed her situation in terms of its criteria for urgent priority or additional priority under a specific Band (for example, under Miss X’s existing Band 3 medium priority). This should be clear in the Council’s decision and is fault.
  13. The failure of the Council to clearly set out the relevant sections of its housing allocations policy in its review letter caused Miss X distress and uncertainty. This was made worse by the Council’s failure to properly consider Miss X’s health and welfare under the criteria set out in paragraph 41 above. The timeframe for completing the works to her house was undefined and this caused Miss X uncertainty.

The Council’s decision about priority banding

  1. Miss X complains the Council has awarded her the incorrect priority banding (part b of the complaint). Miss X says that the Council should allocate her Band 2 priority as she and her family have not been able to use the conservatory, which makes the house unsuitable for her family’s needs.
  2. In paragraphs 35 to 37 above, I have explained why I do not find the Council at fault for deciding Miss X did not qualify for Band 2 priority based on ‘serious disrepair’ of her house.
  3. In its review decision, the Council told Miss X, however, that she still qualified for Band 3 ‘medium’ priority due to overcrowding by one bedroom.
  4. The Council’s housing allocations policy says that Band 2 priority will only be awarded where there is overcrowding by two bedrooms. I appreciate that Miss X and her family have struggled to make use of the conservatory. However, I have not seen any evidence that suggests the Council considered the conservatory as a bedroom for the purpose of awarding banding. This means, based on the bedrooms in Miss X’s house and the make-up of her household at the time of her review request, the Council has correctly applied its policy when deciding the house was overcrowded by one bedroom only. I understand that the conservatory has since been removed, but this does not affect the number of bedrooms available to Miss X and her family. I, therefore, do not find the Council at fault here for awarding Band 3 priority.
  5. I understand that the conservatory space was an important factor for Miss X given the property was still lacking one bedroom. Prior to bidding on the property, the evidence shows Miss X asked the Council whether she could be considered for three-bedroom houses. On balance, I am satisfied that the Council’s response to Miss X gave her sufficient information prior to her bidding on her current house that she would be over-occupying any three-bedroom property.
  6. As explained in paragraph 20 above, the Council’s housing allocations policy says it is fully committed to helping applicants to play an active role in choosing where, and in what property type they will live. I have, therefore, decided that the Council was acting with due regard to this section of its policy when it accepted Miss X’s bid on a three-bedroom property. I do not find the Council at fault here.

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Agreed action

  1. To remedy the injustice Miss X has experienced, the Council has agreed, within four weeks of my final decision:
  • to apologise to Miss X in writing for failing to provide her with a review decision that made clear and detailed reference to its housing allocations policy and that correctly applied its policy on assessing her health and welfare;
  • to make a payment of £250 to Miss X to recognise the distress, inconvenience and uncertainty caused by the insufficiently detailed review decision. This recommended payment is in line with the Ombudsman’s published guidance on remedies; and,
  • to provide Miss X with information on what she needs to do if she still wishes the Council to properly assess her banding priority based on health and welfare grounds.
  1. Within three months of my final decision, the Council has also agreed to:
  • review its housing allocations policy to ensure the health and welfare assessment process is sufficiently clear, including in terms of how and when to apply the two conditions detailed in paragraph 41; and,
  • share a copy of this decision with relevant staff members.
  1. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

  1. I have completed my investigation. I uphold part a of Miss X’s complaint because there is fault causing her injustice. The above recommendations are a suitable way of remedying the injustice. The Council has agreed to these.
  2. I do not uphold part b of the complaint. This is because there is no fault.

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Parts of the complaint that I did not investigate

  1. I did not investigate the disrepair issues that Miss X raised, including those concerning the condition of the conservatory and whether it needed to be replaced. I did not investigate the action the Council took because of these issues or its contact with Miss X’s social housing provider. This is because these matters fall within the remit of the Housing Ombudsman Service.

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Investigator's decision on behalf of the Ombudsman

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