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Birmingham City Council (20 011 188)

Category : Housing > Allocations

Decision : Upheld

Decision date : 25 Mar 2022

The Ombudsman's final decision:

Summary: The Council has failed in its statutory duty to ensure the accommodation it provides for Mrs B’s household is suitable. The Council also failed to properly consider whether Mrs B’s son needed his own room for medical reasons and fettered its discretion when it decided not to allow Mrs B to bid on smaller properties. The Council also delayed reviewing the suitability of Mrs B’s accommodation, delayed reviewing Mrs B’s housing priority and delayed dealing with her complaints. The Council has agreed to make a payment to Mrs B, offer Mrs B suitable temporary accommodation, consider allowing Mrs B to bid on smaller properties and to take action to prevent similar failings in future.

The complaint

  1. Mrs B complains that the Council has:
    • Not given her sufficient priority on its housing register.
    • Not offered her alternative temporary accommodation despite accepting that her current temporary accommodation is unsuitable.
    • Failed to consider her request to be allowed to bid for properties with one less bedroom than she needs but with two reception rooms.
    • Delayed reviewing her housing priority.
    • Delayed reviewing the suitability of her accommodation.
    • Delayed responding to her complaints.
  2. Mrs B says that as a result of the Council’s failings, her family is living in temporary accommodation which is severely overcrowded and is affecting her children’s health.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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 the complaint and the documents provided by the complainant;
    • discussed the issues with the complainant;
    • made enquiries of the Council and considered the comments and documents the Council has provided; and
    • given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Homelessness

  1. 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.
  2. 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)
  3. Applicants can request a review of the suitability of the accommodation provided. Councils must complete the review within eight weeks of receiving the review request.

Housing allocations

  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. 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))
  3. The Ombudsman normally will 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.

The Council’s allocations scheme

  1. Bidding: The Council operates a choice-based lettings scheme. Housing applicants can bid on available properties.
  2. Priority band: The Council places applicants who qualify to join the housing register in a priority band from Band 1 (highest priority) to Band 4 (lowest priority). This priority is the first factor the Council uses to allocate a property.
  3. Band 1: So far as is relevant to this complaint, the Council awards Band 1 where:
    • the applicant’s household is lacking three bedrooms in their current accommodation. The Council uses the bedroom standard to measure overcrowding levels for the purpose of awarding priority and allocating accommodation.
    • a medical condition or disability is made substantially worse by current housing. This includes people whose life is at risk or who are completely housebound because of their housing conditions or type of accommodation.
    • there are exceptional circumstances where the only way an exceptional housing need can be resolved is through the use of discretion.
  4. Band 2: So far as is relevant to this complaint, the Council awards Band 2 where:
    • the 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.
    • the applicant’s household is lacking two bedrooms in their current accommodation.
    • the applicant is homeless and owed the main duty because they have been assessed as being in priority need and unintentionally homeless.

Overview

  1. In January 2019, the Council placed Mr and Mrs B and their six children in temporary accommodation, a three-bedroom house, when they were homeless.
  2. Mrs B also joined the Council’s housing register. The Council awarded priority Band 2, due to homelessness and priority Band 3, due to overcrowding. It decided the family needed a four-bedroom property.
  3. Mr and Mrs B had another baby in March 2020.
  4. After Mrs B asked the Council to review her housing priority, the Council decided the family needed a five-bedroom property and awarded Band 2 due to overcrowding because they were lacking two bedrooms. The Council told Mrs B that it had not been able to assess her application for a medical award because it had not received any medical evidence which showed the current accommodation was having a detrimental impact on a member of the household’s health.
  5. Mrs B then submitted a change of circumstances form along with supporting medical evidence to show that her eldest son, G, needed his own bedroom for medical reasons and the accommodation was affecting his health.
  6. Mrs B also asked the Council to review the suitability of the temporary accommodation.
  7. In November 2020, after carrying out a home visit, the Council decided the temporary accommodation was unsuitable because it was too small. The officer considered the medical evidence provided showed that G required a bedroom of his own. The Council placed the family on its planned move list for a larger property.
  8. In January 2021, Mrs B complained to the Ombudsman that the Council had not carried out a review of her housing priority and her family was living in severely overcrowded temporary accommodation. We referred Mrs B back to the Council because she had not completed its complaints procedure.
  9. The Council then assessed the medical evidence Mrs B had provided and reviewed her housing priority. It decided to award Band 2 for medical needs because the evidence showed that the accommodation was affecting G’s health.
  10. In the Council’s response to Mrs B’s complaint, it said that following the positive review decision in November, she had been placed on the planned move list for a larger property and she would be contacted as soon as something became available. It also confirmed that she had been awarded Band 2 with a five bedroom need when it assessed her application in February 2021.
  11. Mrs B was not satisfied with the Council’s response and escalated her complaint to the next stage of the Council’s complaints procedure.
  12. A Council officer then called Mrs B to discuss her complaint. The officer decided to review Mrs B’s Band 2 award, with a view to exploring whether the family had an exceptional housing need and should be awarded Band 1 based on G’s medical needs.
  13. Mrs B’s case was considered by the exceptional housing needs team in June 2021, but it decided not to make a Band 1 exceptional needs award. Mrs B then requested a review of the decision.
  14. When the Council reviewed Mrs B’s housing priority in December 2021, it again decided that she should be in Band 2 and needed accommodation with five bedrooms. In its letter, it said that it had noted Mrs B’s request for an additional bedroom for G but it did not have a medical practitioner’s report which demonstrated his need for his own bedroom. It advised Mrs B to submit a medical practitioners report which confirmed this, and which explained how his health would benefit from an additional bedroom. It also said that the criteria for a higher medical band award had not been met.
  15. Mr and Mrs B remain living in three-bedroom temporary accommodation with their seven children.

Analysis

Housing priority

  1. Mrs B submitted a change of circumstances form and requested a review of her housing priority on 4 August 2020. The Council carried out the review on 8 February 2021, six months later. Mrs B submitted another change of circumstances form on 17 June 2021. The Council carried out the review on 15 December 2021, six months later. I consider a reasonable time frame to complete a review is four to six weeks. The Council’s delays here were fault.
  2. The Council’s Housing Allocation Scheme says that a Band 2 medical award should be granted when the applicant’s housing is unsuitable for severe medical reasons or due to their disability, but who are not completely housebound or whose life is not at risk due to their current housing. The Council awarded Band 2 for medical needs; it did not consider the criteria had been met for a Band 1 medical award. I have found no evidence of fault in the way it reached this decision.
  3. The Council’s Housing Allocation Scheme also states that Band 2 should be awarded when the applicant’s household is lacking two bedrooms, and Band 1 should be awarded when they are lacking three bedrooms. The policy also explains how it decides how many bedrooms are needed, depending on the age and gender of members of the household.
  4. Mrs B provided medical evidence to support her view that G needs his own bedroom. A letter from G’s Clinical Psychologist states that he, “…has to share a small bedroom with his brother in an overcrowded house. The environment is not appropriate for his diagnosis as he does not have the space required…”.
  5. The Council accepted that the accommodation was affecting G’s health when it considered this letter and awarded Band 2 for medical reasons in February 2021. But there is no evidence to show that it also considered whether G needed his own bedroom. This was fault.
  6. Where we find evidence of fault, we consider what would likely have happened if there had been no fault. The Council properly considered whether G needed his own bedroom when it reviewed Mrs B’s housing priority in December 2021. I consider it likely that if there had been no fault by the Council in February 2021, it would have taken the same action that it did in December 2021. At that time, the Council awarded Band 2 with a five-bedroom need. It noted Mrs B’s request for an additional bedroom and advised Mrs B to submit a medical practitioners report which confirmed this, and which explained how his health would benefit from an additional bedroom. If the Council had properly considered whether G needed his own bedroom in February 2021, it would have provided this advice to Mrs B then.
  7. I appreciate that Mrs B considers she has already provided evidence to show that G needs his own bedroom, and I note that the officer reviewing the suitability of Mrs B’s accommodation was satisfied that she had done so. However, the officer reviewing Mrs B’s housing priority in December 2021 was entitled to reach a different view. The Clinical Psychologist’s letter states that G does not have the space he needs, but it does not specifically state that in her medical opinion, G needs his own bedroom.
  8. The Council should have considered whether G needs his own bedroom and advised Mrs B to provide further evidence when it assessed the evidence Mrs B submitted in August 2020. If there had been no delay by the Council, it would have provided this advice by late September 2020, around 15 months before it did so in December 2021. This would likely have resulted in the Council deciding the family needed six bedrooms. It would not have resulted in a Band 1 award for overcrowding because this is based on the bedroom standard. According to the bedroom standard Mrs B’s family is lacking two bedrooms.

Suitable accommodation

  1. Mrs B requested a review of the suitability of her accommodation on 13 August 2020. The Council completed its review on 11 November 2020, 13 weeks later. Reviews should be completed within 8 weeks. The Council’s delay was fault. If there had been no delay by the Council here, I consider it would have decided Mrs B was living in unsuitable accommodation in October 2020.
  2. When the Council reviewed the suitability of Mrs B’s accommodation, it accepted that it was unsuitable and placed the family on its planned move list. It says that it has been unable to move Mrs B to suitable accommodation because larger properties rarely become available. The Council has a duty to ensure Mrs B’s accommodation is suitable for the needs of all members of her household. Lack of resources cannot be relied on as a reason for providing unsuitable accommodation. The family has been living in unsuitable accommodation for over a year, and they remain living in unsuitable accommodation. This is fault.
  3. The Council does not have a specific planned move policy. It says that properties are offered to families who have been on the planned move list the longest, and to families who are in bed and breakfast accommodation. By not having a policy, it is not possible to scrutinise the way the Council is allocating temporary accommodation and determine if it is being allocated fairly.

Accommodation size

  1. Mrs B says that she would accept a property with one less bedroom than she needs, if it has two reception rooms, but that the Council will not allow her to bid on such properties.
  2. The Council says there is no provision for bidding on smaller properties in its current Housing Allocation Scheme. But that there is provision for this in its draft Allocation Scheme which is currently open for public consultation.
  3. The draft Housing Allocation Scheme only allows applicants to bid on smaller properties when they are statutorily overcrowded, which Mrs B is not. This appears to be a missed opportunity to make the best use of available stock.
  4. Councils should not fetter their discretion by rigidly applying a policy which prevents the proper consideration of any exceptional circumstances. Councils should consider whether there are circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.
  5. Mrs B is disadvantaged because larger properties rarely become available and so she is likely to remain in significantly overcrowded accommodation for far longer than smaller families who are lacking the same number of bedrooms. Her housing situation would be significantly improved if she were able to bid on smaller properties with two reception rooms. The Council fettered its discretion when it decided not to allow Mrs B to bid on smaller properties, without considering her exceptional circumstances. This was fault. I consider the Council should consider exercising discretion to depart from its usual policy and allow Mrs B to bid on smaller properties with two reception rooms.

Complaint handling

  1. The Council’s complaints procedure states that at the first stage of the procedure, it will respond within 15 working days. Mrs B made a formal complaint on 26 January 2021 and received the Council’s response on 27 April, 63 working days later.
  2. The Council’s complaints procedure states that at the second stage of the procedure, it will respond within 20 working days. Mrs B escalated her complaint on 27 April 2021 and received the Council’s response on 16 June, 34 working days later. The Council’s delays were fault. They will have caused Mrs B frustration and put her to avoidable time and trouble.

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Agreed action

  1. Within four weeks, the Council will take the following action:
    • Make a payment of £2100 to Mrs B. This equates to £150 per month for the period October 2020 to February 2022 when Mrs B was living in unsuitable accommodation.
    • Make a payment of £200 to Mrs B to recognise the distress and frustration she experienced as a result of the failings identified in this case.
  2. Since issuing my draft decision on this complaint, Mrs B has submitted further medical evidence to the Council and it has carried out a review of her housing priority. It has awarded Band 1 medical priority with a six-bedroom need.
  3. The Council has also offered Mrs B alternative temporary accommodation, but she did not consider it was suitable. The Council has agreed to make another offer of suitable accommodation to Mrs B within eight weeks of my decision.
  4. Within eight weeks, the Council will also take the following action:
    • Develop a policy on how to allocate temporary housing to homeless applicants waiting on the planned move list, and in particular how to prioritise between applicants in accommodation with shared facilities and applicants in significantly overcrowded accommodation.
    • Take action to ensure it carries out reviews of the suitability of accommodation within the statutory timescales.
    • Highlight this case to relevant staff and remind them to fully explain the reasons for their decisions when carrying out housing priority reviews.
    • Consider exercising discretion to depart from its Housing Allocations Scheme to allow Mrs B to bid on properties with one less bedroom than she needs and two reception rooms, as well as properties with the number of bedrooms she needs.
    • Consider whether to amend its Housing Allocations Scheme to allow applicants who are significantly overcrowded, but not statutorily overcrowded, to bid on properties with one less bedroom than they need, but with two reception rooms.
    • Take action to reduce delays in complaint handling.

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Final decision

  1. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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