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South Tyneside Metropolitan Borough Council (20 012 060)

Category : Housing > Allocations

Decision : Upheld

Decision date : 05 Oct 2021

The Ombudsman's final decision:

Summary: Mrs B complains the Council have not properly dealt with her housing needs. The Council is at fault because its allocations policy is misleading, it did not follow its review process and did not consider evidence provided by Mrs B about medical equipment required by her daughter. The Council has agreed to apologise to Mrs B, pay her £200 for distress, obtain an independent assessment, consider her appeal and review its allocations policy.

The complaint

  1. The complainant, whom I shall refer to as Mrs B, complains the Council have not dealt properly with her housing needs properly because it has not:
    • considered her daughters medical circumstances or the equipment she requires properly.
    • followed its review and appeal process properly.
  2. Mrs B says she has missed out on being able to bid on appropriate properties and she and her daughter have suffered distress.

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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. 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)
  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)

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How I considered this complaint

  1. I spoke to Mrs B and considered the details of her complaint as well as the Council’s response. I reviewed documents sent by the Council and Mrs B.
  2. Mrs B 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 Councils allocations policy

  1. The following decisions all have the right to request a review:
    • A decision not to allow someone to join the Housing Register
    • A decision to award reduced priority
    • A decision to remove a person from the Register other than at the person’s request
    • A decision on the suitability of the offer of accommodation
  2. An applicant may request a review within 21 days of a decision and will be informed in writing of the outcome, including reasons. The review should be completed in 21 days and carried out by an Officer senior to the person who made the original decision. If the applicant remains dissatisfied with the decision of the Senior Officer then they have the right to appeal.
  3. The policy says, “There is no statutory right to a second appeal and will be a discretionary appeal and will only be considered within exceptional circumstances or where someone raises a point or principle or law that has not been included within the policy.”

What happened

  1. Mrs B was a tenant in a Council property. Her daughter is disabled and suffers from multiple severe conditions, both physical and psychological. She was initially allocated band 4 as her housing priority.
  2. Mrs B asked the Council to reconsider her housing because her daughter’s needs had increased. The Council’s adult social team had advised that she would need storage for wheelchairs and adaptable equipment.
  3. An occupational therapist (OT) from the Council visited Mrs B and her daughter to make an assessment. The OT’s recommendation was that Mrs B should be able to bid on two-bedroom bungalows with ramped access or level access with a level access shower.
  4. The Council put forward Mrs B’s case as an exceptional circumstances application in November 2019. This was approved by a manager within days but Mrs B was not informed until January 2020. Mrs B was sent a letter saying she had been granted band 1 priority and was able to bid on two-bedroom properties.
  5. Mrs B was unhappy with the outcome of her housing application and requested a review of the decision. She asked the Council to consider the variety of equipment her daughter required and how it could be stored.
  6. The Council provided a response to Mrs B’s review request in February 2020. It did not change its decision. Mrs B was told she could request an appeal of the decision within 21 days.
  7. Mrs B appealed providing a detailed list of medical equipment and aids used by her daughter and asked to be allowed a three-bedroom property, in her preferred area of choice, capable of adaption as two bedroomed properties were too small and there were no appropriate properties to bid for.
  8. The Council contacted Mrs B and said it would like to visit her at home to discuss her situation and fully consider all the points she raised. A meeting was arranged for March 2020 with another OT to obtain an independent review.
  9. The meeting was cancelled due to the impact of COVID-19. The Council asked for a telephone discussion, but this was refused by Mrs B. The Council replied in writing to Mrs B’s appeal request, refusing to grant her appeal.

Analysis

  1. The wording of the Council’s allocations policy is misleading. The Council have correctly stated to Mrs B in later communications that the review process involves a review of the decision, followed by a single appeal stage. However, its allocations policy refers to the right to appeal and also a ‘second appeal.’ This could be interpreted as constituting a three-stage process of a review, followed by two appeal stages. This is fault by the Council. Mrs B was confused by the wording in the allocations policy. The Council accepts its allocations policy could be set our more clearly and has started to make changes.
  2. Mrs B asked for a review of the outcome of the exceptional circumstances application. The Council and Mrs B disagree about the basis of the review. Whether or not it fell within the wording of section 36 of the Council’s allocations policy is immaterial. The Council allowed the review. It should have followed the review procedure. The review of the decision was completed by the same manager that proposed the recommendation in the exceptional circumstances application. The review decision was not made by someone senior to the person who made the original decision. This is fault by the Council. Mrs B cannot be certain the review was objective.
  3. Mrs B said her daughter’s needs had changed since the first OT assessment. The Council said it needed a face-to-face meeting at their home with another OT to obtain an independent review. Mrs B arranged for her Advocate to attend the meeting as support for her as she was very stressed and apprehensive. The meeting was prevented due to the COVID-19 pandemic. Mrs B declined a telephone call in place of a face-to-face meeting as previous telephone calls had left her upset and she wouldn’t have the support of her Advocate to help her through. This is not fault by the Council.
  4. After it reviewed its decision about Mrs B’s housing, the Council told her that the OT assessment took into account equipment issued following recommendation from a registered health or social care professional, and that “other equipment would of course be taken into consideration if there was evidence of professional assessment.” Mrs B’s appeal contained information in response to this.
  5. The Council refused to consider Mrs B’s appeal on the grounds that, “there are no points of principle or law that have not been included within the policy relating to your situation.” The Council should have considered whether there were exceptional circumstances, as stated in section 36 of its allocations policy. Its response shows it did not do so. This is fault by the Council. Mrs B’s appeal was not considered properly.
  6. The full list of medical equipment provided by Mrs B is not referred to in the OT assessment. On the balance of probabilities, the Council refused Mrs B’s appeal without taking into account the relevant additional information she provided about her daughter’s medical equipment. This is fault by the Council. Mrs B’s appeal was not considered properly.
  7. The Council says Mrs B was granted access to larger accommodation. The February 2020 review response was clear that Mrs B could bid for two-bedroom properties and referred to new build and Adapted accommodation with wet room and level access.
  8. The Council’s response to Mrs B in March 2020 states, ““However, to provide you with additional support I am happy to extend the recommendation to include larger properties, which have either the required adaptations or offer level access for your daughter. These will be properties where we would allow under occupation and where there are no other families requiring that size of property.” The conditions attached to this support were conditional.
  9. The Council’s response did grant Mrs B access to a larger subset of accommodation, albeit with significant conditions. This does not negate the fault already found in paragraphs 24 and 25.

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Agreed action

  1. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
    • Apologise to Mrs B;
    • Pay Mrs B £200 for distress;
    • Obtain an independent assessment of Mrs B’s housing needs by another occupational therapist, taking into account Mrs B’s appeal information as well as her daughter’s current circumstances;
    • Consider Mrs B’s appeal by a panel of elected members as per section 36 of its allocations policy if she is still unhappy following the OT assessment; and
    • Review the wording of section 36 of its allocations policy.

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Final decision

  1. I have found fault by the Council causing injustice to Mrs B. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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