Summary: Miss B complained the Council had not considered properly the priority for her application for rehousing. And that the Council had wrongly said the only way she could bid for a three-bedroom property was if she agreed to the removal of her medical priority. She said the property where she lived was overcrowded and had an adverse impact on all the family but particularly her two children who have extra needs. There was fault by the Council which caused injustice to Miss B. The Council will apologise and make a payment to her.

The complaint

1. I call the complainant Miss B. She complained the Council had not considered properly the priority for her application for rehousing. And that the Council had wrongly said the only way she could bid for a three-bedroom property was if she agreed to the removal of her medical priority. She said the property where she lived was overcrowded and was having an adverse impact on all the family but particularly her two children who have extra needs.

Back to top

The Ombudsman’s role and powers

2. 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)
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. 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)

Back to top

How I considered this complaint

5. I considered the complaint and documents provided by Miss B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Miss B and the Council and considered their comments.

Back to top

What I found

Summary of the relevant legal framework and guidance

6. 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))
7. 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;
• people who need to move to avoid hardship to themselves or others.

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

What happened

8. Miss B lived in a two-bedroom property with her four children. The two oldest both have additional needs. The Council accepted the medical needs of her children meant she qualified for a four-bedroom property. She was awarded this priority in June 2014. Very few four-bedroom properties become available and Miss B had not been able to make a successful bid in her preferred areas. She asked whether she could therefore bid on three-bedroom properties that had two downstairs rooms. This was so she could use one of the downstairs rooms as a bedroom which would mean her oldest child would have a room of his own.
9. The Council’s position was that under the Allocation Scheme it did not consider living rooms as sleeping accommodation so would not offer accommodation of a smaller size than an applicant’s need. However, it said if Miss B accepted the medical override (awarding the four-bedroom need) was removed then she would be able to bid for three-bedroom properties.
10. The Council assessed Miss B as being in band 2 of its scheme for awarding priority for allocation of housing, again from June 2014. Miss B asked for a review of this decision as she considered she should be in band 1. The Council’s position was she did not meet the threshold for band 1.

Analysis

Priority banding

11. The Council’s policy is that Band 1 is for where there is a serious medical condition or disability that is made substantially worse by the current accommodation. This would include people whose life is at risk due to their current housing conditions or who are completely housebound because of the type of accommodation they live in. The Council’s policy is that an applicant’s medical circumstances will normally only be referred for a medical assessment if the applicant has indicated that there is a serious medical condition or disability that is made substantially worse by their current housing.
12. Medical priority for band 2 is where an applicant’s housing is unsuitable for severe medical reasons or due to their disability, but who are not housebound or whose life is not at risk due to their current housing. However, their housing conditions directly contribute to causing serious ill health and the condition of the property cannot be resolved within a reasonable period of time. Circumstances will be assessed by a relevant officer of the Council and may need to be referred to a relevant Council advisor, depending upon the circumstances. The policy goes on to give as an example where children with severe conditions such as autism, or cerebral palsy, where their long term needs cannot be met without suitable accommodation.
13. Miss B submitted information to the Council about her circumstances and the medical needs of her children. The Council accepted the children have medical needs but considered this was within the band 2 criteria. The Council explained why it considered band 2 was correct. In its correspondence with Miss B it also explained why she did not meet any of the other criteria for an award of band 1. There was no fault in the way the Council considered this.

Number of bedrooms

14. The Council accepted the needs of Miss B’s children meant she was entitled to a four-bedroom property rather than the three she would normally be entitled to under the policy.
15. In early 2019 the Council wrote to Miss B saying she could bid on both four-bedroom properties and three-bedroom properties with two living rooms. The Council say this was a mistake. It is not clear if there was ever actioned and whether Miss B was ever able to bid on both. But in July 2020 the Council said she could only bid on four-bedroom properties.
16. In responding to the complaint the Council said the housing allocation scheme did not calculate a second living room as a bedroom. But it considered this was a missed opportunity in making the best use of the limited stock available and it would be considered as part of the review of policy. It also accepted the explanation to Miss B about the option of bidding on two living room/three-bedroom properties was not clearly explained.
17. The Council also agreed it could allow Miss B to bid on three-bedroom properties with two living rooms but that would mean she could no longer bid on four-bedroom properties. This was because of the way the bidding system operated. An applicant was either in the three-bedroom property queue or the four-bedroom.
18. A Council’s policy must not be used as a rigidly applied constraint which prevents the proper consideration of any exceptional circumstances of a case. The Council accepted it could allow Miss B to bid on two living room/three-bedroom properties, but did not provide a satisfactory explanation of why she could not also bid on four-bedroom properties. The reason appears to be that the bidding system was not designed to allow that to happen.
19. There is also the question of when Miss B should have been able to bid on both types of property. The Council said in January 2019 she could. It said that was a mistake but it would have been reasonable for Miss B to have been able to do that then. If that had happened there has to be a good chance she would, by now, have made a successful bid. Her areas of choice were limited – that was because she needed to be able to have support with her caring responsibilities. But, even given those limitations, on the balance of probabilities, she would have been successful in her bids for other properties.
20. This meant Miss B and her family lived for longer than she they should in unsatisfactory accommodation. I cannot say precisely how long but the Council should make a payment to reflect this injustice.
21. Miss B has now been allocated a suitable property so that part of the complaint is resolved.

Agreed action

22. The Council will apologise to Miss B and pay her £500 for the failure and injustice I identify above. It should do so within one month of this decision.
23. I am pleased to note the Council is taking steps to allow people with four-bedroom entitlement to also bid on appropriate three-bedroom properties.

Back to top

Final decision

24. There was fault by the Council which caused injustice to Miss B.

Back to top

Investigator's decision on behalf of the Ombudsman