Summary: Mr B complained about how the Council dealt with his application for housing, in particular the consideration given to the needs of his two disabled children. We found there was service failure and fault which led to injustice for Mr B. A remedy in acknowledgement of this has been agreed.

The complaint

1. The complainant, whom I will call Mr B, complained the Council has failed to house him and his family appropriately to take account of the special needs of his disabled children. The family is currently in temporary accommodation out of area which he says is unsuitable.

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What I have investigated

2. I have investigated the Council’s actions in respect of the banding priority awarded to Mr B’s housing application and the action taken in respect of requests for reassessment.

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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. 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)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of the information it provided in response as well as relevant Council policy.
8. I have had regard to the Ombudsman’s guidance on remedies.
9. Mr B and the Council had an opportunity to comment on a draft of this decision. I considered all comments received from both sides in response.

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What I found

Legal and administrative information

Homelessness

10. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
11. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
12. Homeless applicants may request a review within 21 days of being notified of some decisions, including the suitability of accommodation offered to them after a homelessness duty has been accepted.

Housing allocations

13. 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))
14. An allocations scheme must give reasonable preference to applicants in specified categories, which include homeless people, and people who need to move on medical or welfare grounds. (Housing Act 1996, section 166A(3))
15. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

The Council’s allocations policy

16. The Council places applications for housing in bands, according to the points awarded on assessment of housing need. The greatest number of points are awarded to emergency cases (emergency band), followed by urgent and priority bands, and finally general and reserve bands.
17. The urgent band is awarded to applicants with 100-240 points, and it includes applicants with urgent heath needs (referred to as ‘A’ medical). The priority band is awarded to applicants with 40-90 points, and it includes statutory homeless households.

What happened in this case

Background

18. The Council accepted a housing duty to Mr B and his family in December 2016. After being evicted from their home the family was placed in temporary accommodation in 2017. Mr B says the first temporary accommodation offered was not suitable, but the Council then offered a ground floor flat outside the borough, which he accepted. The family still lives in that accommodation.
19. Mr B has two children, born in 2014 and 2017. The eldest child has cerebral palsy, the youngest child is on the autism spectrum, and both children have Global Developmental Delay.
20. In May 2018, a senior medical advisor visited the property to gather information to inform a review of medical recommendations and banding. The advisor found the property was not unreasonable but noted the mobility equipment needed for the eldest child as he grew, coupled with his physical needs, meant that he would need his own room. A three bedroom need for the family was therefore noted. Insofar as the priority banding was concerned, the advisor said that homelessness already gave priority and that the medical team was aware of the conditions in the home and would take this into account when shortlisting bids for property.
21. Mr B’s application for housing has been placed in the priority (homeless) band and his assessed housing need is for a three-bedroom easy access and step-free property, with a level access shower. The Council has advised Mr B that the property should be on the ground floor if no lift available or up to the first floor with a lift. In information provided to me, the Council has said accommodation can be on any floor with a lift: this is contradictory. I will return to this point later in this statement.

Action from July 2019 onwards

22. The Council notes that in September 2019 Mr B contacted it seeking a review of the suitability of the temporary accommodation. The Council says that it issued a letter to Mr B on 28 October 2019, under Regulation 7(2) of the Homelessness (Review Procedure) etc Regulations 2018. This is the process by which a reviewer notifies an applicant that they are minded to make an adverse finding, and the applicant is entitled to make representations. A decision on this review request was subsequently notified to Mr B on 6 November 2019. The notification letter confirmed the Council’s view that the accommodation was suitable and appropriately advised Mr B of his right of appeal to the County Court if he considered the Council’s decision was wrong in law.
23. Also in September 2019, Mr B complained about bedbugs in the property. The Council says it sent an email to the letting agent about this in November 2019, seeking an update. Again, it is unclear what happened next insofar as this matter is concerned: there is reference to a response having been issued in January 2020 but the next available information about this appears to date from later in 2020 when it was reported as an ongoing issue. The lack of complete records in respect of this may again be because of the cyber-attack.
24. In July 2020 Mr B made a complaint to the Ombudsman because he did not consider the Council had taken due account of the needs of his disabled children when considering his housing needs, and the property was unsuitable for them for several reasons including lack of space and its location. This complaint was referred back to the Council for consideration.
25. In September 2020 Mr B contacted the Ombudsman again. He said he was still awaiting a response from the Council in respect how it had reached its decision on the banding of his application for housing, given the medical needs of his children. He considered the application should not be in the priority homeless band, but in the higher urgent band. Mr B also reiterated the issue of bedbugs in the property.
26. In undated correspondence, in which apologies were offered for an extended delay in response, the Council’s Cabinet Member for Housing Needs and Supply advised Mr B that the temporary accommodation team would be taking up the matters Mr B had raised about his accommodation. The letter noted that Mr B was eligible to bid on three-bedroom properties, and noted that he had medical recommendations for a wheelchair accessible home. Reference was also made to the issue of bedbugs, which was also being looked into.
27. Having heard nothing further from the Council, on 19 November 2020 Mr B sent it a copy of this correspondence and asked it to provide a final response on the issue of medical priority and on the suitability of the property which he said was in poor condition, not adequate in terms of accessibility for his child who needed to use a walker to mobilise on entry / exit, and unsuitable in terms of location given that they were having to travel from outside the borough to access medical treatment, education and support.
28. On 14 December 2020, a Council officer visited Mr B’s home and took measurements and photographs, and on 23 December the Council responded to Mr B’s complaint. It set out the assessed need for a three-bedroom home either on the ground floor without a lift or first floor with a lift, and with a level access shower. It said while it was noted that there were difficulties in using the bath for the children, there were few properties available as temporary accommodation which would offer an improvement in this regard. The Council said it had noted the problems Mr B had described in respect of his son being able to manoeuvre around the property given the space constraints, but the officer who had visited had suggested this could be improved by reconfiguring the layout of some furniture within the flat.
29. In respect of medical needs and the impact of this on banding, the Council set out that while Mr B’s application is in the priority homeless band, the recommendations made in his case as a result of medical considerations (that is, the need for level access accommodation on ground floor level, or first floor with a lift, and with a level access shower) meant that his bids would have priority for such property over those in the higher band which did not have such recommendations. Because of this, an appeal in respect of the eldest child’s medical assessment, or a request for a further medical assessment in respect of the younger child and any additional medical recommendations made would not lead to Mr B’s application being moved to the ‘urgent’ band.
30. The Council said that at this time due to the cyber-attack it was not possible to access all housing records, and neither could it consider a medical assessment appeal or further medical application on account of the limited availability of the Council’s systems. It said Mr B could pursue further medical assessments when the Council's systems became available again. The Council also noted that in respect of reviews of the suitability of temporary accommodation, as it could not view details of any such request or outcome because of the impact of the cyber-attack, if Mr B still wished to do seek such a review he could do so.
31. The Council’s policy says it will seek information and guidance from health and social care professionals where there are relevant health and social care factors that need to be considered. The Council says the onus is on the housing applicant to provide supporting medical information including reports from occupational therapists (OTs), however, if the applicant is unable to provide their OT report, the medical team will contact the OT department for a copy of the report. The Council also says that if an applicant is put forward for a property, a request is made for an OT to visit and inspect the property and confirm its suitability for the household. Mr B has said he will obtain an OT report to support his application.
32. In respect of bedbugs, the Council said the managing agent for the property had sprayed two or three times to eliminate the problem, and when the Council officer had visited he had seen areas on the wall in the children’s bedroom which may have been swatted bugs, but no other evidence of active bugs. However, given Mr B’s concerns the Council said it was again taking this up with the managing agent.

Analysis

33. As previously noted, the cyber-attack on the Council has created significant difficulties accessing information and evidence.
34. As noted earlier in this statement, Mr B was provided with a decision on the suitability of his temporary accommodation following his request for review in September 2019. However, the Council has said he can request a review of suitability again now if he wishes. Temporary accommodation must be suitable for all members of the family and when deciding about the suitability the Council must have regard to the need to promote and safeguard the welfare of any children in the household. Suitability needs to take account of changes in the family’s needs, and a further review would appear to be appropriate as Mr B has reported that the family’s needs have changed as the children have grown.
35. Similarly, the Council has now said that Mr B can now make a request for a further medical assessment. While the Council has said that the outcome of such assessment could not ‘promote’ his application to the urgent housing band, such assessment could lead to further housing needs being identified. That may, in turn, mean that the family has greater priority for some properties than applicants in the urgent band, because of the matching process described at paragraph 29 above. It is appropriate to note here the considerable demand for housing and in particular the limited supply of adapted properties, and the likelihood that irrespective of any reassessment of medical needs a considerable number of other families in the urgent band with medical needs would remain ahead of Mr B under the current allocations policy. However, while the Council is not at fault in how it has applied its policy in respect of the banding of Mr B’s housing application, because of the impact of the cyber-attack Mr B’s opportunity to have a request for medical review progressed to a decision has been delayed.
36. Regarding the issue with bedbugs, the Council has provided no evidence of follow up action taken after December 2020, when it had advised Mr B it was again taking this up with the managing agent for the property. This may be indicative of a lack of the promised follow-up action or a deficiency in record-keeping, both of which would be fault.
37. As a result of the service failure and fault identified in this statement, Mr B has been caused frustration, uncertainty about whether he might have been in a better position now had delays not occurred, and some avoidable time and trouble in pursuing these matters and his complaint about them.

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Agreed action

38. In recognition of the injustice caused to Mr B and identified above, I recommended that within four weeks of the date of the final decision on this complaint the Council:

• Issues him with a formal written apology;
• Supports him to progress any request for a review of the suitability of his temporary accommodation and any medical reassessment, ensuring he is provided with clear information about what he needs to do and what information he needs to provide, and thereafter progressing these requests to formal decisions without delay;
• Confirms with Mr B whether the situation with bedbugs has been resolved, and if it has not, follow up any outstanding matters in respect of this with the letting agent, keeping Mr B updated; and
• Pays him £500.

39. The Council has agreed to my recommendations.
40. The Council has advised changes to its allocations policy which will be implemented in October 2021 will remove the discrepancy between applicants in the urgent and homeless bands: applicants with significant medical need will be prioritised according to application date alone, and this will ensure applicants accepted as homeless are not at a disadvantage.

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Final decision

41. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

42. I did not investigate the suitability of Mr B’s accommodation, as he has the right to request a review of this and it would be reasonable for him to exercise that right.
43. For the reasons set out in paragraph 6 above, I did not investigate the actions of the Council in respect of Mr B’s housing prior to July 2019. Mr B could have complained sooner about the Council’s actions in the earlier period.

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Investigator's decision on behalf of the Ombudsman