Summary: The Council’s delay handling Mr X’s request for an assessment of his mobility category is fault. The Council also failed to tell Mr X about his statutory right to ask for a review of its decision that his temporary accommodation is suitable. The Council has agreed to apologise, pay Mr X £500, begin a new medical assessment and allow Mr X to ask for a suitability review.

The complaint

1. Mr X complains about the Council’s handling of two medical assessments in support of his housing application. Mr X says there has been significant delay and the Council has awarded the wrong mobility category for his needs.
2. Mr X also complains that his current Temporary Accommodation is unsuitable and in disrepair.
3. As a result, Mr X says he remains in a property that is harmful to his health.

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The Ombudsman’s role and powers

4. 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)
5. 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. 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 Mr X about the complaint and considered the information he provided.
8. I made written enquiries of the Council. I considered its response along with relevant law and guidance.
9. Mr X 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

Allocations

10. 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))
11. 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))
12. Councils must notify applicants in writing of the following decisions and give reasons:
• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person;
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.

The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))

The Council’s scheme

13. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises.
14. Priority Group: the Council places applicants who qualify to join the housing register into a priority group based on their housing need. So far as is relevant to this complaint, these Priority Groups include homeless applicants.
15. Points: the Council awards each applicant a number of points to decide their priority need for rehousing. It awards points based on the Priority Group, with additional points for employment and local connection to the borough.
16. Mobility Categories: the Council uses Mobility Categories to indicate the type of housing an applicant needs. So far as is relevant to this complaint, this includes:
• Category 3: applicants who need a property on the ground floor or with a lift that has level access.
• Category 4: those with no mobility needs

Temporary accommodation

17. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main homelessness duty.
18. 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 Homelessness Code of Guidance 17.2)
19. Certain decisions councils make about homelessness carry a statutory right of review. The review decision then carries a right of appeal to court on a point of law. Homeless applicants have a right to review the suitability of temporary accommodation provided under the main homelessness duty. (Housing Act 1996, s202)
20. Homeless applicants must seek a review within 21 days of the decision. However, applicants can ask a council to reconsider its decision about the suitability of temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. This new decision is open to review under s202, with a new 21 day timescale. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)

What happened

Medical assessment

21. Mr X is homeless. The Council discharged its duty by providing temporary accommodation outside the borough.
22. Mr X is on the Council’s housing register in the Homeless Priority Group. He is in mobility category 4. This means the Council does not consider that Mr X’s health means he needs a specific property.
23. Mr X asked the Council to assess his medical priority and mobility category in January 2020.
24. In January, the Council completed its assessment. It decided Mr X should remain in category 4.
25. The Council accepts it failed to tell Mr X about the outcome of this assessment until November, despite repeated contact from Mr X to ask for an outcome. In response to his complaint, it apologised and offered a remedy of £500.
26. Mr X asked the Council to assess again in November. At the time of the Council’s response to Mr X’s complaint, in March 2021, it had not completed this assessment.
27. The Council says it wrote to Mr X’s GP for more information in December 2020 but, despite follow up requests, received no response. The Council says it therefore decided to complete the assessment without this information.
28. It did this in October 2021. The Council decided Mr X’s health conditions did not result in a need for a mobility category 3 property.
29. Since its decision was not to change the category, the Council says its delay completing the assessment did not cause Mr X to miss any offers of accommodation.

Suitability

30. Mr X says that as well as the impact of his health conditions, the property is in disrepair which makes it unsuitable for him and his family to occupy.
31. He says the property is very damp and that this makes his health conditions, which includes a problem with his lungs, much worse.
32. In its letter in October 2021, the Council says that it considers Mr X’s accommodation to be suitable.

My findings

Delay

33. The Council accepted fault for its delay telling Mr X its decision about the first medical assessment. Its apology and offer to pay Mr X £500 is a suitable remedy for the injustice caused.
34. The Council further delayed completing the second assessment. It took almost a year to complete it. The Council says it was trying to get information from Mr X’s GP. It says late responses to GP enquiries are followed up weekly by email or telephone.
35. The records provided by the Council show one note, from June 2021, of an attempt to chase the GP for information. The note says the email was “undeliverable”. There is no other evidence the Council tried to chase the GP surgery, despite its assertion that it does this weekly. There is no evidence the Council told Mr X this was the reason for the delay.
36. There is also no evidence the Council told Mr X what information it needed from the GP. It may be that Mr X could have provided this information or followed up with his GP surgery himself.
37. It seems the Council was content to allow the matter to drift, waiting for information from Mr X’s GP. I consider its failure to communicate with Mr X about the reasons for the delay to be fault.
38. In response to my enquiries, the Council said that since it had not heard from the GP, it would now make a decision based on the information it already had. It would appear that the Ombudsman’s investigation was the reason for this decision.
39. The Council sent a decision to Mr X in October 2021. It decided that Mr X’s accommodation is suitable and that he should remain in mobility category 4.
40. The Council took 11 months to reach this decision. This is a significant delay and is fault.
41. However, since the Council’s decision remains that Mr X’s application is in Category 4, he has not missed out on any suitable properties. Nevertheless, the delay, and the Council’s failure to communicate with Mr X about it, caused Mr X avoidable distress, uncertainty, and time and trouble. This is an injustice to Mr X.

Medical assessment decision

42. The Ombudsman cannot question the merits of a decision made without fault. This means that unless we find the Council failed to follow the law, guidance, and its own policy or failed to consider relevant information, we cannot question its decision about what mobility category Mr X’s application should be in.
43. In relation to the most recent decision about Mr X’s mobility category, the Council considered:
• The medical assessment form Mr X provided
• The supporting information Mr X provided, including letters from Mr X’s consultant
44. The Council decided it needed more information from Mr X’s GP to make a decision. Since it did not get this information, I do not consider that the medical assessment considered all the relevant information before deciding that Mr X’s needs can be met in mobility category 4.
45. The Council should complete a further medical assessment, after gathering all the necessary information. This should include an update from Mr X about any changes in his health since November 2020. If the Council cannot get the information it needs from Mr X’s GP, it should consider other ways it can get this information.

Suitability

46. Mr X says his temporary accommodation is unsuitable because of his health needs and because the property is in a poor state of repair.
47. The Council’s records say when it referred the case back to the Medical Advisor in November 2020 that this was to consider both Mr X’s mobility category and the suitability of his accommodation. The medical advisor’s recommendation was that the property is suitable.
48. In its letter in October 2021, the Council says it does not consider Mr X’s property to be unsuitable. This is a new suitability decision. The letter says Mr X can ask for a review of this decision within 21 days. But this is buried in the middle of the letter and does not tell Mr X that he has a statutory right to a review under the law.
49. The Council should now conduct a s202 review of the suitability of Mr X’s temporary accommodation, including his right to appeal the outcome to court on a point of law.

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Agreed action

50. To remedy the injustice to Mr X from the faults I have identified, the Council has agreed to:
• Apologise to Mr X in writing
• Pay Mr X a further £500 in recognition of the delay in the second assessment
• Begin a further medical assessment
• Notify Mr X that it will conduct a s202 review of the suitability of Mr X’s temporary accommodation within statutory timescales.
51. The Council should take this action within four weeks of my final decision.
52. The Council has already committed to make improvements to how it communicates with applicants in temporary accommodation. This includes:
• Introducing a regular newsletter to inform and update applicants
• Developing a new Customer Relationship Management system to improve tracking and oversight of communications from applicants in temporary accommodation
53. These improvements are welcome.
54. The Council should also take the following action to improve its services:
• Amend any relevant letter templates to ensure that the right to ask for a statutory review is clear and prominent. This should include the relevant timescale, as currently, but also inform the applicant how to ask for the review.
55. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Final decision

56. I have completed my investigation. There is fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman