Summary: Miss J complains the Council’s housing allocation policy discriminates against her children’s disabilities and puts them at a disadvantage against non-disabled families. She also says the Council’s correspondence was misleading and did not tell her she could bid for ground floor properties. We find fault by the Council in its housing allocation policy not fulfilling its duties under the Equality Act, and the poor standard of its communications with Miss J. We recommend the Council reviews its policy, so it complies with relevant legislation. It should also apologise to Miss J and review her rehousing application.

The complaint

1. Miss J complains;

• The Council indirectly discriminated against her family by its housing policy not considering disabilities and because of that she cannot bid for houses;
• She could not bid for properties for 12 months due to failures in the Council’s bidding software;
• The Council told her she can only bid for first floor properties, when she can bid for ground floor properties as well; and
• The Council did not adequately assess her application for rehousing by not inspecting her current housing situation.

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The Ombudsman’s role and powers

2. The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act.
3. 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)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. 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

6. I read the complaint and the Council’s responses. I made enquiries of the Council and interviewed a Senior Housing Officer. I also reviewed relevant legislation and guidance.
7. I invited Miss J and the Council to comment on the draft decision and considered any comments made in response.

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What I found

8. Section 19 of the Equality Act 2010 defines indirect discrimination.
9. Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
10. For indirect discrimination to take place, four requirements must be met:

• the authority applies (or would apply) the provision, criterion or practice equally to everyone within the relevant group, including a particular service user;
• the provision or practice puts (or would put), people who share the service user’s protected characteristic at a particular disadvantage when compared with people who do not have that characteristic;
• the provision or practice puts (or would put), the service user at that disadvantage; and
• the authority cannot show that the provision, criterion or practice is justified as a proportionate means of achieving a legitimate aim.

Public Sector Equality Duty

11. On 5 April 2011, the Public Sector Equality Duty (the equality duty) came into force. The equality duty was created under the Equality Act 2010. The duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.

Government Social Housing Allocations Guidance

12. Chapter 3 provides guidance to local authorities on eligibility and qualification for social housing allocations.
13. Section 3.26 says “In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in section 166A(3) Housing Act 1996 to give overall priority for an allocation to people in the reasonable preference categories”.
14. Section 3.27 says “Housing authorities should avoid setting criteria which disqualify groups of people whose members are likely to be accorded reasonable preference for social housing, for example on medical or welfare grounds. However, authorities may wish to adopt criteria which would disqualify individuals who satisfy the reasonable preference requirements. This could be the case, for example, if applicants are disqualified on a ground of antisocial behaviour”.
15. Chapter 4 provides guidance to local authorities on framing an allocation scheme.
16. Section 4.4 says “In framing their allocation scheme to determine allocation priorities, housing authorities must ensure that reasonable preference is given to the following categories of people:
1. People who are homeless within the meaning of Part 7 of the 1996 Act (including those who are intentionally homeless and those not in priority need)
2. People who are owed a duty by any housing authority under section 190(2), 193(2) or 195(2) of the 1996 Act (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any housing authority under section 192(3)
3. People occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions
4. People who need to move on medical or welfare grounds, including grounds relating to a disability, and
5. People who need to move to a particular locality in the district of the housing authority, where failure to meet that need would cause hardship (to themselves or others)

17. Section 166A(3) of the Housing Act 1996 defines the criteria listed in the above paragraph and provides the legislation the social housing allocation guidance is based upon.

The Council’s Housing Policy

18. The Council’s Housing Bands and Property Size Policies document is available on its website.
19. Its property size policy rules allow one bedroom for:

• every adult couple (married or unmarried)
• any other adult aged 16 years or over
• any two children of the same sex aged under 16
• any two children aged under ten years
• any other child (other than a child whose main home is elsewhere)
• children who can’t share because of a disability or medical condition
• a carer (or team or carers) providing overnight care.

20. The document also details rules for property types offered.
21. It says houses are allocated to a household with children (aged 15 or less). Only tenants of the Council in Bands A, B1 and B2 who currently occupy houses will automatically be considered for rehousing to another house. Other priority applicants will be considered for flats or maisonettes.
22. The rules also say that where a household has four or more children, with at least one child aged 15 years or under, the household may be considered for all types of accommodation, including houses. It says this is due to the short supply of very large flats and maisonettes.

Miss J’s complaint about the Council’s housing allocations policy

23. Miss J has two children aged five and nine years old. Each child has a disability. She lives with them in a two-bedroom flat.
24. In December 2019 she was given housing allocation Band B1 by the Council after an application for rehousing under medical priority. The medical assessment found that each child should have their own bedroom due to their medical needs.
25. In June 2020, a further review of the medical evidence determined that Miss J’s housing allocation should also include an exclusive garden or semi-exclusive garden shared with a few other families. This letter also said that a house is not medically essential, a flat or maisonette is acceptable providing it has garden access as described.
26. Miss J said the Council’s policy around the types of properties that will be offered indirectly discriminates against her family as they cannot bid for houses. She says this is the case even though they have a greater need for a house than a family without disabilities that has the same bedroom requirements, and that family would be able to bid for a house under the Council’s policy.
27. In the Council’s stage two complaint response to Miss J, it said she had not been discriminated against by the Council. It said she had been awarded priority in accordance with its allocations policy.
28. In response to my enquiries, The Council said “Although Miss J is not eligible for a house on her priority Band B1, she is eligible for a house on her Band C and will be considered with all other Band C applicants who qualify in date order of registration. As such she can bid for houses under her Band C application. In terms of the Band C listing and in line with the Allocations Policy, Miss J is eligible for a 2-bedroom accommodation. Therefore, the system would only recognise her bid for a 2-bedroom property and reject any bids for three-bedroom properties. Currently the waiting time for a two-bedroom house is approximately 10 years from date of registration. However, as the Medical Adviser has recommended a three-bedroom flat or maisonette under her priority Band B1, she is able to bid for a three-bedroom flat or maisonette using her Band B1 priority. That priority status does not extend to houses”.
29. A Senior Housing Officer (Officer A) from the Council was interviewed about this complaint. Officer A said that when someone is entered onto the housing bidding system, they are given Band C and the system automatically works out what houses they can bid for based upon the number of people in the household, so it would let a family bid on any property that matches their criteria.
30. Officer A said when someone is awarded a priority band then the Council can put more specific criteria in place, such as in this case the need for each child to have their own bedroom. Officer A confirmed that Miss J cannot bid for three-bedroom houses, only flats or maisonettes. Officer A confirmed that a family with the same requirements without disabilities could bid for a house but said they would likely face a ten year wait.
31. Officer A said the Council generally gets more flats and maisonettes than houses, and they have restricted the allocation of houses to those moving from a house with a priority band or to those with four or more children because of this.

Miss J’s ability to bid for properties

32. Miss J said that due to an error with the Council’s housing bidding software, she was unable to bid for properties for 12 months. She said the activation for her to bid took ten weeks and then the system automatically rejected every bid she made for properties in the subsequent ten months.
33. The Council apologised for the ten-week delay in activating Miss J’s ability to bid, but said she had not been disadvantaged by this delay as she would not have been allocated a property yet based on priority.
34. In its stage 2 complaint response, the Council also apologised for the error on the system rejecting Miss J’s bids automatically. It said the error had now been resolved and that she had not been disadvantaged by the error. It said the most recent applicant to successfully bid for a three-bedroom property had a registration date of June 2017.

First floor properties

35. Miss J said that the Council told her she could only bid for first floor properties. She said a letter sent to her by the Council in December 2019 says she should be allocated a property that is first floor lifted or un-lifted.
36. In response to my enquiries, the Council said Miss J can also bid for ground floor properties. When I informed Miss J of this, she said it was the first time she had been made aware.
37. Following our interview, Officer A from the Council said the correspondence between the Council and Miss J could have been clearer.

Assessment of application

38. Miss J said the Council did not adequately assess her need for housing as it did not inspect her current accommodation. She said a medical advisor should have visited her property to assess the impact the type of accommodation has on her family and use that information to make decisions about the type of properties she should be able to apply for.
39. In response to my enquiries, the Council said “Due to the number of applicants waiting medical assessments it is not practical for the Council to employ a medical professional to visit each individual applicant to assess the suitability of the applicant’s home. Therefore, the Medical Advisers rely on the applicant’s own statement on the medical form together with reports submitted by medical professionals caring for the individual household member. A wholesome view based on the applicant’s own description of the housing issues or “dangers” supported by medical information forms the background for determining the suitability of each household for any type of property”.
40. During interview, Officer A said the medical advisor makes a decision and then this is communicated to the applicant. The Council do not further assess the medical advice before sending it to the applicant, but the applicant can appeal the decision.

Analysis

Miss J’s complaint about the Council’s housing allocations policy

41. The Council’s policy enables a family without disabilities to bid for a house that a family with disabilities would not be able to bid for, even though both families have the same bedroom requirements. In this case, Miss J’s children’s medical need is also for a garden which a family without disabilities would not have, so in some cases the need will be greater for the disabled family to be able to apply for a house, but the Council’s policy prevents such a family being able to bid.
42. The Council’s response to Miss J said she was not discriminated against as the Council’s policy has been followed.
43. I note Officer A’s comments in interview that a family without disabilities may face a long wait and I appreciate the Council has limited housing stock. However, this does not change that a family with disabilities has a disadvantaged starting point under the Council’s policy.
44. The Council’s housing allocations policy does not take account of its duties under the Equality Act 2010, the Housing Act 1996, the Public Sector Equality Duty and the Social Housing Allocations Guidance. The Policy puts disabled households, with the same or greater needs as a non-disabled household, at a disadvantage. The policy does not provide reasonable preference to disabled households as it should under the Housing Act. This is fault.

Miss J’s ability to bid for properties

45. The Council’s acknowledged its fault in this part of the complaint. It apologised and took action to resolve the issue.
46. In response to my enquiries the Council provided me with a list of property allocations and dates the applicants received their banding. I am satisfied that Miss J was not disadvantaged by the delay she faced as the vast majority of applicants who successfully bidded for properties had a date of registration before hers. I do not find fault by the Council in this part of the complaint.

First floor properties

47. The letter sent to Miss J by the Council in December 2019 said she could bid for properties “First floor lifted or un-lifted”. The Council has acknowledged its communications could have been clearer.
48. The letter the Council sent to Miss J means she was unaware she could bid for ground floor properties and has not been applying for such properties. This was fault and caused Miss J distress by trying to find a first-floor property with access to a garden which would be far less common than a ground floor property.

Assessment of application

49. The Council has a policy to submit evidence provided by the applicant to a medical advisor. It said it is not practical to send a medical professional to each applicant’s current property due to the number of requests it receives. I do not find fault with this approach.
50. However, when the Council receives the advice back from the medical examiner, it sends the advice to the applicant, rather than giving it any further consideration. In this case, the medical examiner said a house is not a medical priority, a flat or maisonette is acceptable as long as it has the garden specified in the medical report.
51. The Council is responsible for deciding the priority band and type of accommodation the applicant can apply for. It should consider the advice and make its own decision what type of properties an applicant can bid for on a case-by-case basis, considering what type of properties it has that can meet the applicant’s needs.
52. Simply sending on what has been passed by the medical examiner without checking itself can cause errors, as it has in this case with the issue of first floor accommodation detailed earlier in this statement.
53. Medical examiners should make recommendations on what type of properties are medically essential, and the Council should then determine what properties it has that can meet that need.
54. For the reasons listed above, I find fault with the Council’s process by not further assessing the application when it receives advice from the medical examiner.

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Agreed action

55. To remedy the injustice identified, the Council has agreed to take the following action within three months of a final decision;

• Review its policy of allocating houses and make relevant changes to ensure it meets the duties placed upon the Council by the Equality Act 2010, the Housing Act 1996, the Public Sector Equality Duty and the Government’s Social Housing Allocation Guidance.
• Following the review, any applicants who may have been disadvantaged by the Council’s current policy should be invited to ask the Council for a review of their housing application. The Council will write to anyone who has been disadvantaged by its policy.
• Review its processes to ensure the medical advice is checked and assessed by the Council before a decision is sent to the applicant.
• Remind its staff of the need to write clear communications to members of the public that are not ambiguous.
• Reassess Miss J’s application and consider whether she should be able to bid for houses that meet her family’s needs based upon the policy review.

56. The Council has also agreed to take the following action within one month of a final decision;

• Apologise to Miss J, accepting its fault in this case.
• Pay Miss J £300 for the distress caused to her and for her time and trouble pursuing this complaint.

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Final decision

57. I uphold a finding of fault against the Council. I have set out recommendations that the Council has agreed to take to remedy the injustice caused to Miss J and to ensure its policies comply with relevant legislation.

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Investigator's decision on behalf of the Ombudsman