Summary: Miss Y complained about the way the Council considered her request for medical priority banding on its housing register. We have found fault by the Council in failing to carry out reviews of its decision properly, causing Miss Y injustice. The Council has agreed to remedy this by completing a fresh review, apologising, making a payment to reflect Miss Y’s distress time and trouble and a service improvement.

The complaint

1. The complainant, who I am calling Miss Y, complains about the way the Council dealt with her request to move because of her medical requirements. She says the Council failed to recognise:

• her disability in its first review in March 2020, and in doing so discriminated against her
• the seriousness of her mental health condition. Its impact on her is potentially life-threatening, and meets the criteria for priority band 2
• the impact on her of its failures. Ignoring her disability was degrading and took away her dignity

2. Miss Y says the Council should re-assess her priority as band 2.
3. Miss Y also wants the Council to provide its officers with training on disability awareness, communication and customer service and make its processes and policies transparent and accessible.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I spoke to Miss Y about her complaint, made enquiries of the Council and read the information Miss Y and the Council provided about the complaint.
8. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

The Council’s Housing Allocations 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. The Council operates a banding system for applicants on the housing register. Applicants are placed in a band based on their housing circumstances and need. Band 1 is the highest priority and Band 4 the lowest. The Council’s allocations policy sets out the criteria for the different bands.
11. Band 2 includes:

• Applicants with a severe medical, welfare award or disability where the current accommodation is unsuitable, or it is unreasonable to remain in occupation
• This can include where the condition is life threatening and the accommodation is a major contributory factor, or the applicant’s health is so severely affected by the accommodation it is likely to become life threatening for example where an applicant has significant mental health problems which are exacerbated by their accommodation.

12. Band 3 includes:

• Applicants with a moderate medical priority where there is a clear objective need for a move, because their illness or disability is either made worse by the present living conditions, or where a move to more satisfactory accommodation is likely to result in an improvement to health.
• Where the housing conditions directly contribute to causing serious ill health

13. The Council’s allocations policy also sets out the procedure for assessing banding awards on medical, welfare and disability grounds. This says:

• Where there appears to be a need to make enquiries into an applicant’s medical condition the Council will refer the case to an independent medical adviser. Medical evidence provided by the applicant in addition to that provided on the medical assessment form will be sent to the independent adviser.
• If the medical adviser advises the Council reasonable preference should be awarded, the Council will decide whether to make either a severe medical or moderate medical award. The band in which the applicant is placed is determined by the medical award made.
• A severe medical award will be made where it is demonstrated, due to an illness or disability, it is unacceptable for the applicant to remain in their current accommodation
• A moderate medical award will be made where it can be demonstrated, due to an illness or disability, the applicant finds living in their current accommodation difficult and it is clear remaining there will contribute to a deterioration in their health. Or it would be beneficial for the applicant to move, but at present the applicant can manage in their current accommodation.

The Public Sector Equality Duty

14. Public authorities must consider how their policies and decisions affect people protected under the Equality Act 2010. This includes a requirement to have due regard to the need to eliminate unlawful discrimination.

The Council’s equality objectives

15. In its published Equality Framework 2021, the Council says it is fully committed, and required to comply with its duties under the Equality Act 2010 including the Public Sector Equality Duty.
16. It has published an action plan to show how it will meet its commitment. This includes pursuing an agenda of organisational learning and cultural change to promote continuous improvement and ongoing development in the Council’s overall equality, diversity and Inclusion performance.

What happened

Background

17. I have set out a summary of the key events below. It is not meant to show everything that happened.
18. We are only investigating what happened from February 2020. But I have set out what happened before then by way of background to the complaint.
19. Miss Y is a Council tenant. She has been living in her current accommodation, a studio flat, for many years.
20. Miss Y has a mental health condition. She found her accommodation was having a detrimental effect on her health. She applied for a transfer to a different property. She asked the Council to take account of her medical condition when assessing her priority banding on the register.
21. The Council’s medical advisers completed a medical assessment for Miss Y in 2016. The Council then decided Miss Y did not have a medical requirement for a move and placed her in band 4.

2019 – Miss Y’s request for a further medical assessment

22. In November 2019, Miss Y completed a change of circumstances request. She provided details of her mental health condition, how it affected her and the impact of her current accommodation on her health.
23. She told the Council about her symptoms, including paranoia and panic attacks. She explained, because of her condition, a carer had to stay with her, including overnight, at times. As she lived in a studio flat, there was no privacy for her or the carer which increased her stress. She needed a property with a separate bedroom and living space to accommodate a carer.
24. Miss Y also provided details of the clinic she attended, her psychotherapist, medication and enhanced personal independence payment award, together with a letter from her GP in support of a transfer to more appropriate housing.
25. The Council asked its medical advisers to complete a medical assessment. The adviser assessed Miss Y as having no medical requirement for a move or specific property type. The adviser’s comments included:

“Although live in care arrangements may be desirable, the evidence supplied does not indicate that this is medically essential. The applicant’s needs may be met by visiting care. It is reasonable to expect periodic overnight visitors may use the lounge.”

26. The Council confirmed the outcome of the medical assessment to Miss Y. It said she could request a further medical assessment if she believed this had not reflected her requirement for a move.

2020 - Miss Y’s review request

27. Miss Y contacted the Council in February 2020. She told it she disagreed with the assessment she had no medical requirement to move and the Council’s decision she should remain in band 4 with no medical priority.
28. She also pointed out the error by the adviser in stating a lounge was available at her accommodation for overnight visitors. Her flat is a studio and does not have a separate lounge.
29. The Council agreed to review its November 2019 decision. An officer completed a review in March 2020. The review decision letter said the officer:

• decided Miss Y had no medical need or priority and would remain in band 4. She had been assessed by the medical adviser as having no medical needs or a need for a specific property type.
• had regard to the Equality Act 2010 and considered whether Miss Y had a disability or other relevant characteristics, the extent of such a disability, housing needs, and the likely effect of the disability in combination with her personal circumstances.
• was satisfied there was no information to suggest Miss Y had a disability.
• assessed Miss Y as requiring a one- bedroom flat but was satisfied there were no circumstances which required her being placed in a higher band.

30. There was a delay in Miss Y receiving the review decision. Although the Council told her it had been emailed, she did not receive it until May 2020.

June 2020 - Miss Y’s complaint

31. Miss Y was unhappy with the outcome of the review. In June 2020 her mental health advocate wrote to the Council on her behalf and said:

• The reviewer had misunderstood the definition of disability in the Equality Act 2010 and had not engaged with the further information provided for the review.
• Miss Y should be moved to band 2
• The Council should provide its housing team with training about disability legislation and how it relates to mental ill health

32. In response, the Council said:

• The March decision would be withdrawn, and it would carry out a fresh review. It accepted the reviewer had not considered all the relevant information provided with the review request.
• It accepted it was clear, from the information it had on its file, Miss Y had a disability. The reviewer was wrong to say she did not, had failed to recognise her disability and so did not correctly assess Miss Y’s needs.
• Miss Y had not been discriminated against because of her disability. She had been able to challenge the decision through the complaints process.
• The reviewer’s errors had been highlighted and discussed with her. The Council’s officers received Equality Act training and periodic refreshers.
• The March 2020 decision had not disadvantaged Miss Y. Her case would be reconsidered, and any priority backdated. She has not missed the opportunity to bid because bidding had been closed for many months (due to COVID-19 restrictions).
• It apologised for the March 2020 decision. Action had been taken to ensure this did not happen again.

August 2020 - the fresh review

33. Miss Y provided additional medical evidence for the fresh review. This included a letter from her psychotherapist who said Miss Y needed support from a live in carer at certain times. The lack of privacy because she lived in a studio flat exacerbated Miss Y’s distress and symptoms, even more so when a male relative cared for her, when the accommodation was also inappropriate.
34. Another officer carried out a fresh review of the November 2019 decision. In the review decision letter, the officer said:

• Miss Y had a moderate need to move and should be placed in band 3
• They accepted she had a disability and required ongoing care and treatment for her diagnosed mental health condition.
• Having reviewed all the medical information on file, they considered Miss Y had a moderate need to move because of her mental health needs and the impact of the accommodation on her health.
• They had given serious consideration as to whether Miss Y met the criteria for band 2, which was whether her current accommodation impacted her health to the extent it was life threatening or likely to become so. They could not conclude so based on the available information.
• Miss Y would be able to bid for one- bedroom properties when bidding re-opened.

Complaint to us

35. Miss Y brought her complaint to us in February 2021

My findings – was there fault by the Council causing injustice?

36. I am not able to question whether the Council’s decision about Miss Y’s medical priority is right or wrong. I can only consider whether there has been fault in the way it reached its decision.

March 2020 review

37. I consider, and as the Council has accepted, its March 2020 review was flawed. The reviewer failed to recognise Miss Y’s disability. And while noting Miss Y lived in a studio flat, neither the March 2020 reviewer nor the medical adviser (in their November 2019 assessment) considered the impact of this on Miss Y’s medical condition. And the reviewer did not consider the further information Miss Y provided for the review. This was fault by the Council.
38. Because of this fault, Miss Y lost the opportunity to have the review carried out properly in March 2020. She was caused distress by the reviewer’s failure to recognise her disability and had to spend time and trouble raising her concerns with the Council.

August 2020 review

39. The Council did not refer Miss Y’s case back to its medical adviser for a further assessment before completing the review. The only medical assessment available to the reviewer was the one from November 2019.
40. But it was clear the medical adviser in 2019 had completed the assessment on the incorrect assumption Miss Y lived in a one-bedroom flat, with a separate living room where carers could stay overnight. There was also no reference in the adviser’s assessment to the GP’s letter Miss Y had submitted as additional medical evidence in 2019.
41. And Miss Y had submitted further evidence about her medical condition and the impact of her current accommodation on her health, together with a letter from her psychotherapist for the March and August 2020 reviews.
42. My view is the Council should have referred Miss Y’s case back to its medical adviser for a further medical assessment, based on the correct information about Miss Y’s accommodation and taking account of the further evidence Miss Y had provided about her health and the impact of her accommodation on her condition. I consider its failure to do so was fault.
43. Because of this the reviewer did not have an up-to-date medical assessment based on accurate information about Miss Y’s accommodation to consider before deciding whether Miss Y met the criteria for band 2. Miss Y lost the opportunity to have the further review properly carried out on the of basis of updated accurate information.

The Council’s Equality Act staff training

44. The Council has published its commitment to its duties under the Equality Act and its plan for meeting this commitment, which includes organisational learning. In my view this demonstrates the Council has properly considered its duties under the Equality Act 2010 including the Public Sector Equality Duty.
45. But one of its officers failed to recognise Miss Y’s disability. The Council apologised for this failure and confirmed it had discussed this with the officer concerned and taken action to ensure this did not happen again.
46. When we asked about the Equality Act training for staff, the only information the Council provided was that staff have access to its online training. I do not consider this is sufficient to confirm the Council has taken action to ensure all its staff are being given, and completing, appropriate training so this failure to recognise disability does not happen again.

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Agreed action

47. To remedy the injustice caused by the above faults, and within four weeks from the date of our final decision, the Council has agreed to:

• conduct a fresh review of Miss Y’s medical priority, having first given Miss Y the opportunity to submit any further information and referred her case back to its medical adviser for an updated assessment. The Council should ensure the medical adviser is provided with all the further evidence and accurate information about Miss Y’s current accommodation.
• apologise to Miss Y in writing for its failure to complete the reviews properly in March and August 2020.
• pay Miss Y £250 to acknowledge the distress, time and trouble caused by its failure to recognise her disability and complete its reviews properly in March and August 2020.
• This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.

48. And within three months from the date of our final decision, the Council has agreed to:

• review its current training for its staff on the Equality Act and how this is provided; and
• consider whether any changes should be made in view of its failure in this case.

49. The Council should provide us with evidence it has done this.

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Final decision

50. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman