Hastings Borough Council (20 002 818)

Category : Housing > Allocations

Decision : Not upheld

Decision date : 07 May 2021

The Ombudsman's final decision:

Summary: We have found no fault with the Council for the way it considered Ms X’s occupational therapy reports in 2017 and 2019 when reaching a decision on her housing priority banding. We have found no fault with how the Council has handled Ms X’s housing need. We have not upheld Ms X’s complaint.

The complaint

  1. Ms X complained the Council is not doing enough to move her and her family out of unsuitable accommodation. She said:
    • A 2017 occupational therapy report (OT report) provided the same information as a 2019 one, but the Council did not change her priority Band until 2019.
    • Her children have additional needs and cannot share bedrooms.
    • She was sleeping in the first floor lounge but she cannot manage the stairs anymore and she is now sleeping in the ground floor non-heated garage.
    • The stairs are too narrow to fit a stairlift.
    • The whole situation is making her physical and mental health worse.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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 have considered Ms X’s complaint and the Council’s response to her and to my enquiries.
  2. Ms 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

The Law

  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. The Ombudsman may not find fault with a council’s assessment of a housing application/ a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
  3. The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. He may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.

Council’s housing allocation scheme

  1. The Council operates a choice based letting scheme. When a person has been accepted on to the housing register, they can bid for suitable homes when they become available. Only people with an identified housing need seeking general needs accommodation can be added to the register.

Housing needs assessment

  1. The Council carries out a housing need assessment to determine whether a person is eligible to be added to the register. The assessment will determine a person’s bedroom entitlement, priority band, priority date and mobility level.

Medical assessment

  1. Some people with a serious medical condition or disability may be given medical priority. This happens where a move to alternative accommodation would significantly improve the health or quality of life of an applicant or a member of their family.

Priority banding and date

  1. When a person is accepted on to the register, the Council will put them into one of four bands A, B, C or D based on their housing need. Band A is the highest priority and includes applicants who have a medical condition or disability where their home is unsuitable for their needs and there is an urgent need to move to an alternative home to significantly improve their medical condition or disability.
  2. The Council will consider moving applicants up a band where there is a significant change in their circumstances. This includes overcrowding and medical priority. The priority date will change accordingly. The date will be set to the date in which the Council agreed to increase the priority band.

The bidding process

  1. All bids are checked against the eligibility criteria for that property. All eligible bids are then placed into priority order called the ‘shortlist’. Priority is determined in the following order:
    • Priority band
    • Priority date
  2. The applicant with the highest priority will be at the top of each shortlist.

What happened

  1. In July 2015, Ms X and her family moved into the house they currently live in. Ms X said that it was an emergency move to escape domestic violence and it was the first four-bedroom property to become available. The house is over three floors.

Housing register

  1. In 2016, Ms X joined the Council’s housing register because she needed to move to a five bedroom property. Ms X has four children and due to three of them having additional needs, they cannot share bedrooms. Ms X said she was sleeping on the sofa, in the first floor lounge. Ms X provided the Council with letters from various professionals supporting this point. She also requested a two storey property as her disability meant she struggled living over three floors.

OT report 2017

  1. Ms X had an OT assessment to inform her housing application. The OT report dated April 2017 recommended:
    • If the property is a house (likely to be given the number of bedrooms needed), it should have stairs which are wide enough to accommodate a stairlift (suggested minimum width 750mm).
    • There should be a toilet on both levels.
    • The property requires a bathroom of a suitable size for adaptations/or a bathroom which already has a level access shower.
    • Grab rails beside the WC will also be beneficial/or space around the toilet for a toilet frame.
    • Adjacent off road parking is also required.
  2. In November 2018, Ms X wrote to the Council and attached various medical letters including the 2017 OT report, which supported her reasons for needing to move. At this stage, Ms X was in priority Band B. She felt that the OT report supported a move up to Band A to give her greater priority.

No move from Band B to Band A

  1. The Council responded to Ms X and said, having reviewed the medical evidence, it was not enough to change her banding at this time. The Council said the evidence did not show a medical reason to change Ms X to a higher banding that meets the current criteria. It provided a copy of the criteria that an applicant needed to meet to be considered eligible for a Band A priority on medical grounds.
  2. The Council said Band A would require an urgent need to move to an alternative home to improve their medical condition or disability is a medical need. The Council’s Allocation Scheme 2018 said, under the heading ‘Medical Need to Move’, that Band A will be awarded to a person:
    • Where they are entirely housebound or unable to access essential facilities
    • Where they cannot return to their home (e.g. from hospital or care).
    • Where essential care cannot be provided because the home is unsuitable (e.g. if there is not enough space to store specialist equipment).
    • Where there are other medical grounds for requiring an emergency move.
  3. It went on to say that none of these four grounds for awarding Band A were applicable to the circumstances set out in the OT report from 2017. Therefore, it cannot be said there was an urgent need to move to an alternative home to improve Ms X’s medical condition or disability.

OT report 2019

  1. In 2019, Ms X had another OT assessment. While some of the information remained present from the 2017 report, the Council noted a material change and decline in Ms X’s circumstances.
  2. This included:
    • the spread of osteoarthritis all over her body;
    • falls in December 2018 and October 2019;
    • increased use of a wheelchair;
    • can no longer use the bath or shower;
    • struggles to access the first floor toilet;
    • other family members prepare meals for the family as she is unable to; and
    • all four children are identified as having specific needs.

Move from Band B to Band A

  1. In September 2020, the Council wrote to Ms X and agreed the latest OT report provided the information to support a Band A on the housing register. The Council said that Ms X’s needs now fulfilled the urgent need to move as she was unable to access essential facilities.
  2. It said that when the Council reassesses home move bandings any change of banding would usually be set to the date the banding was agreed. It went on to say that in Ms X’s case, the Council has agreed to set the Band A date to that of the OT report which was 30 October 2019.

Failed bids

  1. The Council warned Ms X that there are very few five and six bedroom properties available. In an email from the Council dated 18 January 2021, it said there has not been a five bedroom property listed for the past five years. It suggested she considered private rented properties. Ms X said she cannot afford these with her housing benefit.
  2. In January and February 2021, two five bedroom properties became available. Ms X bid for both. She came second in both cases. Ms X raised concerns about bids being added to the list after bidding had closed.
  3. In response to my enquiries, the Council said the online system that Ms X viewed, was not a live reflection, it was just a guide. It explained there are two separate processes, and they update the system at different times. The Council confirmed no one was added to the list, the person in front of Ms X in both cases, just had a higher priority date (1 July 2016 and 7 June 2018).

Analysis

Summary

  1. In summary, Ms X is currently priority Band A, for a five bedroom property with a priority date of 30 October 2019 (date of 2019 OT report). She recently missed out on two properties because the people ahead of her had a higher priority date.

OT reports

  1. I have considered the evidence supplied by Ms X and the Council. The key documents are the two OT reports dated April 2017 and October 2019. These have similarities but the Council highlighted a material change and decline in Ms X’s circumstances between the two.
  2. Ms X believes her medical needs have not changed substantially. I cannot question the professional judgement of the occupational therapist or the Council officer who made the decision about Ms X’s banding. I can only question how the decision was reached and whether it was done in line with procedure and policy. From the evidence I have seen, the Council’s decision was in accordance with the Council’s Allocation Scheme at the time.

Priority band

  1. The Council’s assessment of Ms X’s priority banding is in line with its allocation policy. Therefore, I do not consider the Council was at fault for only awarding Ms X a Property Band A after considering the 2019 OT report.

Priority date

  1. The Council’s policy states that a person’s priority date is set as when the Council made its banding decision. The Council decided to increase Ms X’s priority to Band A on 16 September 2020 but agreed to set her current priority date to the date of the 2019 OT report. Although this is not in line with its policy, the Council used its discretion to Ms X’s benefit. There is no fault here.

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Final decision

  1. I have completed my investigation. The Council reached its decision about Ms X’s priority banding in line with its Housing Allocation Scheme. I have found no fault with how it reached this decision or how it has managed Ms X’s housing need.

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Investigator's decision on behalf of the Ombudsman

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