Summary: The Ombudsman found fault by the Council on Ms L’s complaint about it failing to properly consider her application to join its housing register. It failed to properly consider eligibility for overcrowding points, delayed an investigation, failed to provide updates, and delayed making a referral for an occupational therapist to assess her son’s needs. The agreed action remedies the injustice caused.

The complaint

1. Ms L complains about the way the Council dealt with her application to join its housing register and in particular its failures to:
1. Properly consider the medical evidence she sent about her son’s disabilities and the need for his own room;
2. Keep her informed about progress;
3. Progress it promptly; and
4. Make prompt referrals to the occupational therapist for her son’s assessment.
2. As a result, she remains in her partner’s parents’ house which is causing the family stress, poses a serious health risk to her son, and costs her financially.

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The Ombudsman’s role and powers

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)
4. 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)

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Council’s allocation scheme (2018)

5. Anyone can approach the Council for housing advice and assistance. The Council keeps a housing register which is a list of applicants registered for Council or housing association properties.
6. Its rehousing standards decide the size of accommodation it may offer. A couple with 2 children would be eligible for a 2/3-bedroom property depending on the age/sex of the children, for example.
7. Applicants are given points for housing need factors and these are added together. The needs of all individuals in an applicant’s household are taken in to account when giving points. This incudes medical points for unsuitable housing due to medical condition or disability. Medical priority is given according to the extent to which the health of members of the applicant’s household is affected by their housing conditions and the expected benefits of providing alternative housing. No medical points are given if there is a medical condition but, the accommodation is suitable. The categories of medical points are:

• Category A: (150 points): this includes exceptionally where a member has an immediate life threatening or progressive condition seriously affected by current accommodation or where 2 members are assessed as being Category B:
• Category B: (80 points): this includes members where current housing conditions are having a major adverse impact on their medical condition; and
• Category C: (40 points): this includes members where current housing conditions is having a moderate or variable impact on their medical condition. It is not for impacts on conditions on health which are slight.

8. The medical advisor may recommend the type, size, and location of housing that is suitable.
9. The scheme also gives points for overcrowding. The Council considers the rooms available to the applicant’s household. Bedroom lacking points are awarded for each additional bedroom required. Where 2 or more bedrooms are lacking the Council allocates 30 points.

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How I considered this complaint

10. I considered all the information Ms L sent about her complaint, the notes I made of our telephone conversation, as well as the comments received from the Council to my enquiries. I sent Ms L a copy of the Council’s response. I sent a copy of my draft decision to Ms L and the Council. I considered their responses.

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What I found

11. For the last 3 years, Ms L, her partner, and 2 children have stayed with her partner’s parents in the 3-bedroom ground floor accommodation they rent from the Council. In addition, 2 other relatives live there bringing the total number of occupants to 8. Before her move, she lived in a property out of the Council’s borough.
12. Ms L’s 5-year-old son, M, is autistic with a severe mental impairment. Ms L wants him to have his own bedroom as he currently shares with her, her partner, and their younger son. M cannot share a room alone with his younger brother whom he has attacked. She wants a 3-bedroom property as she says this will allow M to have a carer sleep overnight.
13. She is unhappy that despite all the medical evidence she sent about her son, and the impact their current home has on him, the Council has not given them more points under its allocation scheme or agreed they need a 3-bedroom property. She complains it delayed dealing with her application, failed to investigate it at all for several months, and delayed referring the case to an occupational therapist to assess M at home.
14. The Council assessed them as needing a 2-bedroom property. It also refused to award points for overcrowding because they were not agreed household members.

Complaint a): Medical evidence

15. In November 2019, Ms L completed a medical assessment form in support of her application to join the Council’s housing register. She referred to M’s need for his own bedroom and a room for an overnight carer. Ground floor accommodation was not necessary.
16. She sent the Council a copy of the multi-disciplinary assessment feedback report dated October which agreed to write a letter in support of M’s need for his own bedroom. A medical report noted he shared his parents’ bed because he wakes in the night and has no sense of safety and needs supervising. Another report by the occupational therapist noted, in the current situation, it was not possible for him to be in a separate room away from stimuli. It recorded how he would benefit from low stimuli environments.
17. The Council said Ms L sent a copy of an email she sent her previous landlord saying she was leaving to be near her children’s father. It also claims she said she wanted to leave because of the affordability of the property. The Council failed to provide a copy of this email.
18. In December, the Council said it emailed her about the property and the rent. When it received a response, it agreed it would take no further action and ended its investigation. The Council failed to send evidence of this email.
19. In April 2020, the Independent Medical Advisor (IMA) considered the medical evidence Ms L sent and decided to award Category C (40 points). The IMA’s advice sent to the Council noted the lack of space in the property, its proximity to a main road, and some safety concerns. The IMA recommended Category C with further housing needs including up to a first-floor self-contained property, with window and balcony locks. The IMA did not consider M needed his own bedroom but recommended screening off part of the bedroom for a ‘calm down’ space.
20. In July 2020, the Council reviewed the award and confirmed Category C. It decided as M needed overnight supervision, as he has no sense of safety, it saw no direct risk justifying the need for a separate bedroom for an overnight carer. Nor did the Council consider he needed a separate room to calm down in as an area of his shared bedroom could be screened off to achieve this. The Council took account Ms L saying they never left M alone. The letter confirmed she had 194 points made up of welfare (40), medical (40), residence (100), shared/lacking facilities (10) and waiting time (4).
21. The Council decided M was safe in this property which was suitable for an autistic child. The points awarded are the same as those allocated to immediate risk cases under its housing risk protocol. All medical conditions are assessed against the present accommodation and advice is initially sought from the medical advisor. This is then considered by the housing officer.
22. The Council confirmed it awards no overcrowding points under its allocation policy where the applicant does not appear either on the tenancy records or the records for the current housing benefit claim. It also decided her previous address met the family’s housing needs and requirements based on the information she gave. This is because she moved from an adequate and suitable 2-bed property into an overcrowded situation. She lives in a 3-bed house which meets hers, and her family’s, needs.

Analysis

23. An applicant can ask for a medical assessment if a medical condition is made worse by the current accommodation. This involves completing a medical assessment form. An applicant must explain how an illness or disability is made worse by their existing accommodation and why that cannot be resolved through adaptations, for example.
24. I make the following findings on this complaint:
1. The Council refused to award overcrowding points to Ms L’s application because she was not the tenant of the property she is staying in, and nor is she named on the housing benefit claim. The Council’s housing allocation policy does not explain this limitation. As it does not set this limitation out, define it, or explain it, I consider the Council applying it amounts to fault. This is because the policy does not prevent this application from being considered for overcrowding points on these grounds.
2. I am satisfied the Council: i) had to consider whether Ms L’s circumstances amounted to overcrowding; and then ii) go on to consider whether she had deliberately worsened her circumstances by moving out of her previous accommodation. This would allow the Council to examine and explore an applicant’s motive for moving out of their previous home in to an overcrowded property. An applicant may or may not have a genuine reason for leaving previous accommodation.
3. The Council says it decided the previous property she left was suitable because it met the family’s needs and requirements. While the Council said she gave the reason of affordability for leaving this property later in November 2019, but provided no copy of her email, there is no evidence affordability was explored or investigated with her. This is fault. A property might become unsuitable, and so justify her leaving it, if it became unaffordable.
4. I am satisfied, therefore, the Council failed to properly consider whether her circumstances attracted overcrowding points. I am also satisfied it failed to go on and consider whether she deliberately worsened her circumstances to gain them. These failures caused Ms L an injustice. This is because she has the uncertainty of not knowing whether the Council should have awarded her overcrowding points.
5. A housing officer needed to consider all the evidence, including the IMA recommendations, and reach his or her own conclusion about medical points. The Council provided no evidence showing this happened. While this is fault, I am not satisfied it caused Ms L a significant injustice because the July 2020 review set out all the information considered as part of that process.
6. I am satisfied the Council considered the evidence provided for M having his own room, along with the IMA’s recommendation and Ms L’s evidence, during this review. This is because the review decision letter listed the documents seen and considered, for example. The Ombudsman may not challenge the merits of a properly taken decision.

Complaint b): Informed about progress and Complaint c): Delay

25. In May 2019, Ms L and her partner applied to join the Council’s housing register (application 1). This gave their housing history as the current home and a previous flat. The Council awarded her 110 points but, in July she asked it to close application 1 because she was not the main applicant.
26. Towards the end of July, Ms L sent a change of circumstances form (application 2). The housing history was the same as before for her partner but, for Ms L, gave details of an additional property. This declared this was privately rented and her reason for leaving was because of the end of the tenancy.
27. The Council said it aims to process all applications within 6 weeks.
28. It said her application failed to mention the previous address she lived at. The Council allocated the case to an officer in early August.
29. In September, because of a discrepancy on her application, it carried out an Experian check. This is done as a matter of routine as part of its enquiries on a new application. The results of this check suggested Ms L had an interest in another property outside the Council’s area which is why her application was referred to investigation. The Council says this property was not disclosed on her application. The investigation aimed at finding whether the application was fraudulent or not. Until the investigation ended, her application was suspended.
30. The Council explained investigations can take 3 months but, where there are discrepancies in an application, may take longer.
31. In October, the Council responded to her complaint about its delay processing her application. The Council said further in-depth investigation of her application was needed as it had to make sure it was genuine. Ms L asked for information about the investigation.
32. Towards the end of November, she again chased the Council about her application and investigation.
33. In December, Ms L sent the Council another change of circumstances form (application 3). This also gave details of the additional property mentioned in application 2. The Council sent her its stage 1 response to her complaint. As noted, the Council said it asked her about this property and she replied.
34. The records show the Council had, at the start of the month, contacted the council in which the property was located. It had still not received a response to this request in October 2020 when it chased for a response. The Council also contacted an internal department to check whether M now went to a local school. The response confirmed he still attended a school in the other borough.
35. Late December 2019, when it received a response from Ms L to its email, it ended its investigation.
36. In January 2020, Ms L bid for her first property.
37. The Council says it took 7 weeks to process her application but notes under the Fraud Act 2006, there is no time limit on the length an investigation may take.
38. In total, the application took just over 3 months to process.

Analysis

39. I make the following findings on this complaint:
1. The evidence does not show what action the Council took as part of its investigation before it sent an email to another council, and another internal department, at the start of December 2019. This is about 3 months after it says the case was first referred for investigation. I consider this delay is fault.
2. I also note the Council ended its investigation after Ms L replied to its email about the property. If the Council had queries about this property, it could have asked her about it earlier because it knew about the property it had concerns about when it received application 2. The evidence does not show the Council asking her about it until December. I consider this delay amounts to fault.
3. The Council ended its investigation not because of information it received from the other council it approached but, because of her response to its email. Indeed, 10 months later, the Council had still to receive a response to its query from the other council.
4. There is no evidence the Council kept her updated about progress, or lack of progress, on its investigation. This is fault.
5. I consider the fault found caused Ms L avoidable injustice. This is because it caused her distress, frustration, and inconvenience. In addition, she has the uncertainty of not knowing whether she might have started bidding on properties at least 6 weeks earlier than she did.

Complaint d): referral to occupational therapy service

40. Ms L says she understood a referral was made to the occupational therapy service for an assessment of M on 23 December 2019. This service assesses the risk presented to children with autism in the family home. Ms L is unhappy because she told the Council about him needing an assessment at least 2 months before when it agreed to arrange it.
41. When she chased a week later, the service said it had no referral. Ms L complains she had to wait 3 months for an assessment and the Council failed to advise her she could self-refer to the service.
42. The occupational therapist’s assessment report was done in March 2020. It noted: M’s behaviour; how he tries to access the windows which have no restrictors fitted; he plays with the oven knobs; how noise from the nearby busy road upsets him; he could run out of the front door; his father saying he needed constant supervision; stair gates could not be fitted to prevent him jumping down the stairs.
43. It recommended: fitting locks to the kitchen cupboard; locks to the outside of the kitchen door top; window restrictors; bolts to the inside front door at the top; increasing the height of the balustrade on the staircase; filling in the gaps along these railings, which would stop him climbing on them. The grandparents refused these recommendations.
44. The report also recommended any future accommodation is no higher than first floor, has no balcony, and has lockable windows for example. It noted Ms L had asked for M to have his own bedroom away from his younger brother. It did not mention the need for an extra bedroom.
45. The Council confirmed the referral Ms L made on 3 January 2020 was allocated to a case worker on 1 March who carried out a home visit the following week. It said the usual waiting time this type of assessment is about 3 months from receiving the request.
46. I note the Council offered to pay her £125 for all failures it identified which included failures to deal with her complaint properly, poor communication, and delay referring to the occupational therapist service.

Analysis

47. I make the following findings on this complaint:
1. The Council accepted it failed to tell Ms L she would need an occupational therapist report from it as well as the one she had from another council. This is fault.
2. It accepted it made a mistake telling her a referral needed to go to Adult Social Care and then Children’s Social Care.
3. The Council accepted the referral was not made until December 2019 even though Ms L raised the need for it at least 2 months before and an officer agreed to arrange it. This is fault.
4. I consider the fault caused Ms L an injustice. While it would not have made any difference to the contents of the report, or the consideration of medical points, for example, I am satisfied it caused her further distress as she was put to further inconvenience, stress, and frustration chasing the Council about it.
5. It took almost 3 months before the assessment was done. The Council explained this was because it had a waiting list for the service which meant a wait of 3 months. In the circumstances, I am not satisfied the time taken for the carrying out of the assessment amounts to fault.

Agreed action

48. I considered our guidance on remedies.
49. I took account of what the Council said in response to her complaint which included: it is looking at improving the time investigations take; the apology given for the errors made with the complaint process; the delay in referring to the occupational therapy service; poor communication; the offer of £125 in recognition of the faults it found; policy and procedural reviews to identify service improvements;
50. The Council agreed to do the following within 4 weeks of the final decision on this complaint:
1. Send Ms L a written apology for its failure to: properly consider her request for overcrowding points; the delayed investigation of her application; the delayed referral to the occupational therapist;
2. Reconsider her request for overcrowding points;
3. Review the causes of the delay with the investigation of her application and act to ensure these are not repeated on future cases; and
4. Pay £200 to Ms L for the injustice the fault caused. This is in addition to the Council’s offer made before we investigated her complaint.

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Final decision

51. The Ombudsman found fault causing injustice on Ms L’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman