Summary: Mr X complained about the way the Council considered his housing application and its decision that he did not qualify to join the Housing Register. He complained that the Council failed to inform him of his right to request a review and it did not make a review decision when he later requested one. We found the Council was at fault and this caused injustice to Mr X. The Council has agreed to provide a suitable remedy.

The complaint

1. Mr X complained that the Council did not properly process the application he made in December 2018 to join its Housing Register.
2. He also complained that the Council failed to make a decision on his request for a review of the decision that he did not qualify to join the Housing Register.
3. Mr X wants the Council to award medical priority for rehousing and backdate his application.

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The Ombudsman’s role and powers

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)
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 have spoken to Mr X and considered the information he sent me. I considered the Council’s reply to my enquiries and relevant correspondence and forms.
7. I read the relevant sections of the Council’s housing allocations scheme.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Housing allocations – the law and the Council’s scheme

9. 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))
10. In June 2012 councils were given powers to decide which groups of applicants qualify, or do not qualify, to join their Housing Register. The rules must be set out in the council’s housing allocations scheme.
11. Westminster City Council’s housing allocations scheme includes 13 groups of applicants who do not qualify to join the Housing Register. This includes:

“applicants who have moved within the last five years into accommodation that is unaffordable and/or unsuitable.”

12. The scheme says the Director of Housing has discretion to disapply this rule in exceptional cases. The scheme also says the exclusions may not apply to homeless applicants owed a duty under Part 7 of the Housing Act 1996.
13. An allocations scheme must give reasonable preference to qualifying 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, s166A(3))

14. Councils must notify the applicant in writing of the decision that they do not qualify to join the Register and give reasons. They must also notify the applicant of the right to request a review of this decision. (Housing Act 1996, section 166A(9))

Review procedures

15. Housing applicants can ask the council to review a wide range of decisions about their applications. Statutory guidance on the allocation of social housing 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 – it suggests eight weeks is reasonable.

16. Westminster City Council’s housing allocations scheme says reviews will be carried out, so far as is reasonably practicable, within eight weeks by a senior officer who did not make the initial decision.

Mr X’s housing application

17. In December 2018 Mr X applied to join the Council’s Housing Register. At the time, he was renting a bedsit from a private landlord and had lived in the property since July 2015. On the application form Mr X said he needed to move to larger accommodation and for medical reasons.
18. The application form asks applicants to give details of any health conditions and disabilities and how these are affected by their current accommodation. Mr X said he suffered from Post-Traumatic Stress Disorder and anxiety. He has physical disabilities which limited his mobility and he used a walking aid. He received a disability benefit and said he needed more support. He said the bedsit made his conditions worse. It was not adequately heated, was noisy and it could not be adapted to meet his needs.
19. The form does not ask the applicant to say when the medical condition or disability was diagnosed or developed. Mr X said he had been receiving medical attention for “a considerable period of time" supervised by his GP. He also had physiotherapy. He gave additional information which suggested his health had deteriorated over time.
20. On 7 May 2019 an officer in the Housing Register team informed Mr X his application had not been accepted. In the decision letter she referred to groups excluded from the Council’s scheme (paragraph 9) and said:

“The information you have provided indicates that you have moved into accommodation which is not suitable for your medical and mobility needs. Therefore, in line with our policy you are not eligible to join the housing register.”

21. Although the officer decided Mr X was not a “qualifying person”, the letter did not explain his right to request a review.. Mr X was not aware of the review rights at the time.
22. The Council says the decision was based solely on the information on Mr X’s application form.
23. On 16 September 2019 complained to the Council. He said he had not been informed of his right to request a review of the decision. He also said the Council had not assessed or considered his medical needs. He said he was chronically ill and received the enhanced rate of the mobility component of Personal Independence Payment (PIP). He asked the Council to assess his application and accept him on the Housing Register. Mr X is not fluent in English so his carer made this request on his behalf.
24. In early October 2019 the Council replied to Mr X’s complaint at the first stage of its complaints procedure. It accepted the May 2019 decision letter did not inform him of his right to a review. It apologised for this. It said a senior officer in the Housing Register Team had been asked to ensure all applicants are informed of review rights in future. The Council upheld this part of Mr X’s complaint. It said a manager would now register Mr X’s review request.
25. Mr X heard nothing more about his outstanding review request in 2019. He asked for his complaint to move to the next stage of the complaints procedure. He said he had not intentionally moved to an unsuitable property but had no other options. He asked the Council to exercise the discretion provided in the housing allocations policy to accept his application on the Housing Register. He said he was chronically ill and received PIP.
26. On 22 January 2020 a manager in the Housing Register team wrote to Mr X. She said she needed up to date information about his medical conditions and treatment to fully assess his housing needs for the purpose of the review. She enclosed a medical assessment form. She asked Mr X to give his reasons for requesting a review, and send her any supporting medical evidence, in the next four weeks. She asked him to give details of his current health care professionals.
27. The manager said if Mr X did not reply by 19 February 2020, she would make a review decision based on the information on file. She said she would inform him if there was going to be a delay in making the decision.
28. Mr X told me he does not remember getting this letter or the form. His carer usually deals with correspondence on his behalf and translates letters for him.
29. Mr X did not get a review decision after 19 February. He received no explanation for the delay. On 3 March 2020 he moved to new accommodation.
30. In late July 2020 Mr X complained to the Ombudsman.
31. In response to our enquiries, the Council says it did not complete the review because Mr X’s housing circumstances changed in March 2020 when he moved to new accommodation. It also explained that it had a backlog of review requests to consider.
32. Soon after making the complaint to us, Mr X made a new application to join the Housing Register on 6 August 2020. The Council has not yet decided whether he qualifies to join the Housing Register. It asked Mr X for medical evidence, which he has now sent, and it will now consider that before making a decision.

Analysis

33. In May 2019 the Council decided Mr X did not qualify to join the Housing Register because he had moved into the bedsit within the past five years. It said it had not been suitable for his needs when he moved in. However I am not persuaded the officer had sufficient evidence at the time to make this decision. It is true that Mr X had moved to the property within the past five years. But the form did not ask about the dates of the onset or diagnosis of Mr X’s medical conditions. So the officer could not have known whether these were all pre-existing conditions which Mr X had when he moved to the property in July 2015.
34. We generally expect applicants to challenge a negative decision by using the review procedure. However Mr X was not informed about his right to ask for a review in the decision letter so he could not do this at the time. This failure to comply with a legal duty was fault.
35. Mr X found out much later he could ask for a review. He made the request in September 2019. In October 2019 the Council agreed to carry out a review. There was then no further communication with Mr X until January. Mr X says he does not remember getting the 22 January letter. When Mr X did not respond, the Council should have completed the review shortly after 19 February as it had promised. But it took no further action and the review, which had already been subject to significant delay, remained outstanding when Mr X moved in early March 2020.
36. The Council’s allocations scheme says it will complete reviews within eight weeks whenever practicable. That is the timescale recommended in the statutory guidance. In this case the Council had six months from September 2019 until March 2020 to make a decision on the review but it failed to do so. That was fault.
37. Mr X’s housing circumstances changed in March 2020 when he moved to a new address. His housing needs must now be assessed based on his current accommodation. It is therefore too late for the Council to complete the review of the December 2018 decision. The consequence for Mr X is that he was deprived of his legal right to have the May 2019 decision properly reconsidered by a senior officer. That leaves him in an unsatisfactory position. He will never know whether the decision would have been upheld or overturned if the review had been completed. We cannot speculate what the outcome would have been if the review had been decided in a timely way.

Agreed action

38. Within one month of this final decision the Council will:
• Apologise to Mr X for the fault in the May 2019 decision letter and its delay in dealing with his September 2019 review request;
• Pay him £300 to recognise the frustration caused by its initial failure to inform him of his review rights and the distress and uncertainty caused by the failure to make a decision on the September 2019 review request;
• Expedite the assessment of his August 2020 housing application and inform him in writing of its decision and his review rights;
• Send us a specimen decision letter to show the information applicants are given about the right to request a review;
• Send us information about any current backlog of review requests and the steps it is taking to reduce it.

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Final decision

39. The Council was at fault and this caused injustice to Mr X. I have completed the investigation because the Council has agreed to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman