Summary: Ms X complained about how the Council managed her requests to move to a larger property on the grounds of overcrowding and unsanitary conditions. The Council was not at fault.

The complaint

1. Ms X complained the Council mismanaged her requests to be rehoused on the grounds of overcrowding, unsanitary conditions and the effect of these on her and her family’s health.
2. Ms X also complains the Council failed in its duties as a landlord.
3. Ms X says her health and the health of her family has suffered and she had to wait too long to be rehoused by the Council.

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What I have investigated

4. I have investigated the complaint in paragraph 1. I explain why I have not looked at the complaint in paragraph 2 at the end of the decision statement.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate complaints about the provision or management of housing let on a long lease by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5B, schedule 5, as amended)
7. 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

8. I considered the information Ms X provided in her complaint submission to the Ombudsman.
9. I made enquiries of the Council and considered the information it provided. This included applications and supporting information submitted by Ms X to join the housing register, medical assessments, details of waiting times for properties for Band C applicants, the Housing Health and Safety Rating System assessment and the Council’s Housing Allocations Policy.
10. I wrote to Ms X and the Council with my draft decision and gave them an opportunity to comment before I made my final decision.

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What I found

Relevant legislation

11. Under the Housing Act 1996, every local housing authority must publish a housing 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.
12. Every local housing authority has a wide discretion about how it prioritises applicants who qualify to join its housing register. Its scheme must, however, give “reasonable preference” to certain categories of applicants, including those who need to move on medical or welfare grounds.

Overcrowding

13. Sections 326 of the Housing Act 1985 defines statutory overcrowding. In making the calculations a child under a year old does not count. A child aged between one and ten counts as half a unit. Children of the opposite sex cannot share a bedroom over the age of 10 years. Living rooms and bedrooms count as rooms available to sleep in. Two people can sleep in a room of more than 110 square feet. A breach of room and space standards is a category 1 hazard under the Housing Health and Safety Rating System.
14. We may not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
15. The demand for social housing far outstrips the supply of properties in many areas. A council can decide not to rehouse someone as long as it has prioritised applicants and allocated properties according to its published lettings scheme policy.

Thanet District Council’s Housing Allocations Scheme

16. Thanet District Council’s housing allocation policy sets out the four bands: A to D, with A being the highest priority.
17. Band A is for applicants with urgent medical or welfare needs.
18. Band B is for applicants with serious housing need. This includes people occupying very overcrowded housing or otherwise living in very unsatisfactory housing conditions.
19. Band C is for applicants occupying unsanitary or overcrowded housing or needing to move on medical or welfare grounds.
20. If an applicant says they consider their health or disability is adversely affected by their current housing conditions, they will be asked to complete a Welfare and Medical Assessment form. Additional information, for example from a medical professional, may also be submitted.
21. The Council will award medical priority where it decides a person’s current housing is adversely affecting their health or wellbeing and a move would improve their health or wellbeing.
22. The policy gives examples of where the Council would award medical priority.. For example, band A would be appropriate if a person is housebound or requires specific adaptations to their property. Band C, would be appropriate for elderly people with moderate to severe arthritis which significantly affects mobility and who live upstairs, or for people whose conditions cause reduced mobility when combined with stairs.
23. A person must provide evidence if asked to do so. It is for the Council to determine the appropriate level of priority in accordance with its allocation policy.
24. The policy says there are only enough properties becoming available to be able to house those most in need. It says applicants may wish to consider other options for re-housing such as renting accommodation in the private sector.

What happened

25. A number of years ago, the Council moved Ms X and her two children to a two-bedroom property following domestic violence. Under the statutory rules on overcrowding, the lounge and one bedroom can sleep two people. The second bedroom can sleep one person.
26. Since she moved into the property, Ms X has complained to the Council about mould and condensation in the property.
27. Ms X asked to be transferred to a larger property in 2017. At this stage, her children were 8 and 10 years old. Because the children were of different sexes and the oldest was 10 years old, the Council assessed the family as Category C for minor overcrowding, in line with its policy. The Council provided Ms X with details of how to appeal this decision, but she did not do so.
28. In January 2019, Ms X’s partner, Mr Y and his pre-school child moved into the property. Ms X informed the Council of this and asked it to reconsider her priority. She complained about the state of the property and said they were overcrowded.
29. The Council reassessed Ms X’s priority and informed her she was still in Category C. This is because Mr Y’s child could share a bedroom with one of the other children. Therefore, she was overcrowded because she lacked one bedroom. Under the Council’s allocations policy, this meant she had Band C priority.
30. Ms X became pregnant and her aunt complained on Ms X’s behalf to the Council about the size and state of the property. She wanted the Council to move Ms X to Band A. The Council considered Ms X’s case and decided Band C was still appropriate. It installed a ventilator to help with the mould and condensation.
31. Following another complaint from Ms X’s aunt, the Council arranged for a Housing Health and Safety Rating System (HHSRS) assessment to be carried out. This found there was condensation and mould growth but it was not a Category 1 hazard because there were no obvious defects that were causing it. Instead, the assessor considered that if the windows were opened more and the heaters used, this would resolve the issue.
32. The HHSRS also looked at the level of occupancy. It determined the property was not currently statutorily overcrowded. However, Ms X was now pregnant and so the HHSRS identified a Category 1 hazard for overcrowding once the baby had been born.
33. As a result, the Council moved Ms X to Band B with an effective start date of 16 December 2019. It informed her of this decision and her appeal rights. Ms X did not appeal.
34. Ms X’s baby was born at the beginning of 2020. Ms X continued to complain. She was visited by a midwife who was concerned about the effect of the mould and condensation on the baby and other members of the family. The midwife wrote to the Council about this.
35. In July 2020, Ms X made a new application based on medical grounds. The Council rejected this.
36. Ms X complained to the Council about its decision not to increase her priority.
37. The Council responded and said it had reviewed Ms X’s case and she did not qualify for Band A priority. It confirmed her Band B priority.
38. Ms X complained at stage 2 of the Council’s complaints procedure. The Council said:

“Private Sector Housing completed a full Housing Health and Safety Rating System assessment of your home… This assessment found that a category 1 hazard existed in relation to overcrowding in your home. It did not record a hazard in relation to damp or condensation. The council’s Allocations Policy includes provision for applicants to be placed in band B where a category 1 hazard exists which cannot be remedied within 6 months. As a result of this advice your application was placed in band B, as a result of the level of overcrowding evidenced… Please complete and return the health and wellbeing form that was recently sent to you. Any new information provided will be assessed and taken into account. I am unable to confirm if this would change your position on the housing register”.

39. In September 2020, one of Ms X’s bids was accepted and she moved to a three bedroom property.
40. During my investigation, the Council said that at the time of the HHSRS assessment, its allocation policy stated Category B priority would be awarded “Where a Category 1 hazard exists under the Housing Health and Safety Rating System, which cannot be resolved within a reasonable time frame, such as that which may be set out in an improvement notice”.
41. The Council said this had only ever been intended to apply to hazards that resulted from disrepair to a property and not from overcrowding. However, because the policy was ambiguous, it was open to interpretation. As a result, to avoid any injustice, the Council made the decision to award Ms X Category B priority. The Council said it had now amended its policy to avoid any such ambiguity and it would not award Category B priority on the basis of minor overcrowding.

My findings

42. When councils are requested to review an applicant’s priority, they should consider the information provided, to make a decision in line with the relevant legislation and its housing allocations policy and to inform the person of the outcome and their appeal rights.
43. Ms X asked the Council to review her priority banding on two occasions. Each time the Council considered the information she provided and applied its housing allocations policy criteria. The Council also carried out an HHSRS assessment in order to determine whether Ms X’s property had a Category 1 hazard which was causing the mould and condensation. On each occasion, the Council informed Ms X of its decision and offered her a right of appeal.
44. The HHSRS determined that once the baby had been born, there would be a Category 1 hazard because the family would be statutorily overcrowded. The Council decided its housing allocations policy was ambiguous because it did not make it clear that only Category 1 hazards relating to disrepairs (as opposed to overcrowding) would entitle the applicant to be allocated Band B priority. It therefore awarded Ms X Band B priority. Ms X was later rehoused in a larger property. The Council acted in line with the law and its own policy. There was no fault in the Council’s actions.

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Final decision

45. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

46. The law says we cannot investigate complaints when the council is acting as a registered social housing provider. Therefore, I cannot investigation the issues related to Ms X’s complaints about mould and condensation in the property.

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Investigator's decision on behalf of the Ombudsman