Summary: The Council was at fault for not addressing Mr X’s complaint about the way an occupational therapist had considered whether he could use the bathroom safely when assessing his application for medical priority for housing and for signposting to the wrong Ombudsman scheme. The Council will apologise, pay Mr X £150 for the additional time and trouble caused and make changes to ensure it has appropriate oversight of the organisation that maintains the housing register on its behalf. There was no fault in its decisions not to award medical priority before August 2021, which were in line with its policy.

The complaint

1. Mr X complained that Wakefield and District Housing (WDH), acting on behalf of the Council, refused his application for medical priority. He said:
• the OT assessment was flawed because it did not take into account his use of an orthotic heel raise, which remains in his shoe at all times to assist with balance, but cannot be used in some situations, such as when using the bath;
• he was not given clear reasons for the refusal and the original reasons for refusal were changed when he challenged the decision.
2. He said the faults meant he remained in housing that was not suitable for him and did not get sufficient priority on the housing register to move to more suitable accommodation. He wants an independent assessment and clear reasons for refusal if he did not meet the criteria for medical priority.

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The Ombudsman’s role and powers

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 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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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 considered:
• the information Mr X and the Council provided;
• relevant law and guidance, as set out below, and the Council’s allocations policy;
• our guidance on remedies.
8. Mr X, WDH and the Council had an opportunity to comment on my second draft decision and I considered their comments before making a final decision.

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What I found

Background

Housing allocations

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))

Reasonable preference

10. An allocation 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)

Decisions and review rights

11. Councils must notify applicants in writing of the following decisions and give reasons:
• that the applicants 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 unreasonable behaviour.
12. The council must also explain the right to request a review of those decisions. (Housing Act 1996, section 166A(9))

Review procedures

13. Statutory guidance on the allocation of accommodation says:

• review procedures should be clear and fair with timescales for each stage of the process
• there should be a timescale for requesting a review - 21 days is suggested as reasonable;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker;
• reviews should normally be completed within a set deadline - 8 weeks is suggested as reasonable.

OT assessments

14. Where the applicant has a disability, the Council may ask an Occupational Therapist (OT) to carry out an assessment of their needs, including whether they need any adaptations made to make the accommodation suitable.

This Council’s allocations policy

15. In 2005, this Council transferred its housing stock to Wakefield and District Housing (WDH), which became the main provider of social rented housing across the district.
16. On behalf of the Council, WDH hold and administer a register of people seeking social housing (the housing register). Applicants wanting to join the housing register must complete an application form to become Homesearch members.
17. The allocations policy (last revised in November 2020) says applicants who are eligible and qualify for Homesearch membership will be placed in a band, which is used to prioritise applicants for an allocation of housing, and takes into account the Housing Act “reasonable preference” categories.
18. Band A is the highest priority band and covers those with urgent need for rehousing, including those with urgent medical needs, as determined by either the Council’s Housing Needs Panel (HNP) or WDH’s Health and Medical Rehousing panel. This includes “disabled applicants whose current home is not suitable or not able to be adapted to meet their needs or it is inappropriate to do so and is resulting in extreme personal hardship for the disabled member”.
19. Band B includes those with medical needs, determined on the same basis as above, but “whose assessed need to move is less urgent than applicants being considered under Band A”.
20. Band C includes those who are under occupying their properties and those who do not meet the criteria set out in bands A, B and D.
21. Band D is awarded where the applicant has no local connection with the area and those who are existing social housing tenants, who do not meet the specific criteria for bands A to C.
22. The allocations policy says an applicant with a physical disability, as defined by the Equality Act 2010 or a long-term medical condition that prevents them from accessing essential facilities within their home can apply to the Health and Medical Rehousing (HMR) panel for a priority move. “This includes anyone who experiences excessive pain, substantial discomfort or difficulty performing day to day tasks and it can be proved that a move to a different property type will significantly relieve these difficulties”.
23. The allocations policy also says:
• WDH’s occupational therapist (OT) will provide advice and guidance on medical conditions;
• there is an expectation that anyone applying for HMR will have explored all equipment and adaptation options before applying;
• applications are initially screened by an OT to establish if they meet the criteria for assessment;
• if an applicant disagrees with the decision, they have a right to appeal within 21 days, setting out their reasons for disagreeing with the decision and providing evidence from a GP, consultant or other relevant source, as appropriate. Appeals will be reviewed by the Clinical Lead OT or Adaptations and Wellbeing Team Manager;
• for those awarded medical priority a review will be carried out every 12 months until they are rehoused.
24. The Council’s Housing Needs Panel (HNP) considers cases that do not meet the criteria for the HMR panel but do meet the criteria for the HNP. This includes complex cases, those where the applicants have mental health or learning difficulties rather than physical disabilities, and those vulnerable for other reasons, such as fleeing from domestic abuse.
25. The policy says applicants/members have a right, on request, to be informed of any decision about the facts of their case which is likely to be, or has been, taken into account in considering whether to allocate housing to them. They have a right to ask for a review of such decisions within 21 days.
26. The allocations policy says monitoring reports will be provided by WDH to the Council on at least a quarterly basis. However, the Council has a statutory duty to run the allocation scheme and it remains responsible for the actions of WDH when WDH is acting on its behalf.

What happened

27. Mr X applied to WDH in March 2020. His application was accepted, and he was awarded band C priority.
28. In late May 2020, Mr X applied for Health and Medical priority. WDH carried out an initial screening. It decided he did not meet the criteria for an assessment because medical priority could only be awarded where an applicant was not able to manage in a property with adaptations. Mr X challenged the decision. WHD did not change its view. It said he could contact its Adaptations Team for a referral to an OT if he needed adaptations.
29. Mr X asked for an OT assessment in mid July. Due to the COVID-19 pandemic, OTs were not able to do home visits until 4 August 2020, by which point 133 people were ahead of Mr X in the queue for an OT assessment.
30. An OT carried out an assessment on 24 August 2020 and decided the property was suitable for Mr X with some minor adaptations: Specifically, the OT:
• noted Mr X had some difficulty with a platform step on the stairs between his bedroom and the bathroom. The record says they discussed ways to reduce the risk of trips and falls, including installing a stair gate, switching bedrooms so that Mr X’s room was on the same side of the stairs as the bathroom, and using a commode;
• observed Mr X transfer to the bath, and fitted and demonstrated a shower board to assist with bathing. Mr X declined grab rails to assist him when standing in the bath as he said he sat to bathe; and
• said grab rails were needed externally to the front access to the property.
31. WDH wrote to Mr X in mid September 2020 to explain he had not met the criteria for medical priority because he was able to access all essential facilities with adaptations. Mr X disagreed. He said:
• the current property was rented from WDH by a family member and he did not want adaptations made that would result in a redecorating cost for them when he moved;
• he did not want to move another family member from their bedroom to accommodate his needs temporarily whilst waiting for longer term accommodation to be identified;
• he could not install a stair gate because the newly installed additional banister rail now prevented this and it was insulting to suggest he used a bed pan;
• the OT assessment did not properly represent his needs because he was using an orthotic heel raise, which remained in his shoe at all times to assist with balance, but cannot be used in some situations, such as when transferring to the bath;
• a reference to him walking outside without walking aids was inaccurate as he always used the heel raise and sometimes used a stick.
32. There was protracted correspondence between Mr X and WDH between September 2020 and March 2021. In late January 2021 Mr X provided a letter from his consultant to his GP, in which the consultant said they had written to the Council in late November 2020. WDH did not change its position after seeing that letter. It clarified that whether he could walk unaided outside did not form part of the criteria considered. It wrote to the consultant in late January 2021 seeking additional information to support the application for medical priority but did not receive a reply. WDH’s Clinical Lead OT wrote to Mr X in early March 2021. They noted the GP had said Mr X’s condition may deteroriate over time and that, if it did so, he could reapply.
33. Mr X reapplied in late March 2021 and requested a fresh OT assessment. An OT carried out a fresh assessment in early April 2021. During the visit, two additional grab rails were fitted, and the OT observed Mr X transfer safely to the bath using them. The record says he said the new rails made accessing the bath “much better”. WDH decided Mr X could access all essential facilities with equipment and rails and wrote to him to this effect in mid April 2021. Mr X asked for a review of this decision. WDH considered his comments but did not change its position. It said it had written to the consultant but not had a response.
34. Mr X remained unhappy and complained to us.
35. In May 2021 the consultant provided further information but WDH said it did not receive this until Mr X contacted it on 12 July 2021. WDH carried out a further OT assessment in August 2021, following which the Health and Medical Rehousing Panel awarded Band B priority for a one or two bedroom ground floor property, with level access shower. WDH wrote to Mr X to confirm its decision on 18 August 2021.
36. In response to my enquiries, the Council said WDH had considered the application in line with its process. It said it acknowledged Mr X’s condition would deteriorate over time but he was currently independent and able to manage with adaptations, which it had provided.
37. In relation to the monitoring of WDH’s activities, the Council said:
• it receives a monthly report from WDH, has access to it operating systems, and attends joint management board meetings;
• applicants can approach the Council to ask for a waiting list decision to be reviewed, although it has an agreement with WDH under which WDH carry out the reviews on behalf of the Council. This route would need to be exhausted before the Council would agree to review a decision;
• if applicants are unhappy with WDH’s complaint response, WDH signposts them to the Housing Ombudsman Service (HOS). HOS will signpost to other Ombudsman schemes if appropriate. In this case, HOS asked the Council to consider Mr X’s complaint; and
• it had not wanted to have applicants access WDH and then make the same complaint though its own process, although it recognised the need for oversight and welcomed our input on this point.

My findings

38. We are not an appeal body and it is not my role to say whether the decision made by WHD on medical priority was correct. I have considered whether there was fault in the decision making process.
39. That Mr X has a physical disability under the Equality Act 2010 is not in dispute. I have seen no evidence to suggest Mr X needed urgent rehousing and therefore met the criteria for band A priority.
40. WDH initially screened the application, which is in line with the process set out in the allocations policy. It decided Mr X did not meet the criteria for a full assessment. There was no fault in the way it did considered this.
41. When Mr X challenged the decision, he indicated that his accommodation was not suitable because he did not have all the adaptations he needed. WDH said he would not meet the criteria for medical priority if he could access essential facilities with adaptations and explained how he could get additional adaptations. This was in line with its policy.
42. There was a slight delay between Mr X asking for an OT assessment in July 2020 and the assessment being carried out in August 2020. This was due to COVID-19 restrictions on home visits and in any case was not sufficient to warrant a finding of fault.
43. The record of the OT assessment indicates the OT considered the issues Mr X reported, including difficulties with the stairs and using the bathroom. The OT recommended adaptations. Mr X said he did not need grab rails as he sat to bathe. Mr X confirmed he agreed the summary of his practical difficulties was correct and that he agreed with the recommended action. It is not clear from the record whether the OT considered the fluctuating nature of Mr X’s disability.
44. Mr X complained about the way the OT assessed his ability to safely transfer to the bath because he was using a heel raise at the time, which he would not be able to use if actually using the bath or shower. The Council did not address this issue in its communications with Mr X. The failure to address this was fault.
45. A second OT assessment in April 2021 determined he could transfer safely with additional grab rails that were installed at that time. Following my draft decision, the Council clarified these were the same adaptations offered to Mr X in August 2020, which he declined. The only change was that Mr X reported he was now stepping into the bath rather than completing a seated transfer. I am satisfied that any fault in the original OT assessment (for example, any failure to consider the fluctuating nature of Mr X’s disability) did not affect the decision he did not qualify for medical priority at that stage.
46. After the second OT assessment the Council again decided Mr X did not meet the criteria for medical priority. Although Mr X disagrees with its decision, the records show it considered the information provided, and applied the criteria in the allocations policy. I have not found fault in the decision-making and therefore I cannot comment on the decision reached.
47. WDH did not receive further evidence from the consultant until July 2021. In light of the additional medical information, WDH arranged a further OT assessment, following which it agreed to Band B priority in August 2021.
48. In his complaint to us Mr X said WDH had wrongly refused him because it said he could walk outside without aids, which was incorrect. WDH told Mr X this issue was not taken into account when making its decision. The records show it applied the correct test when deciding if Mr X met the criteria for medical priority.

Council responsibility

49. The Council is responsible for the acts and omissions of organisations acting on its behalf and I made enquiries about how it monitors the activities of WDH. The information it provided indicated that WDH routinely signposts complainants to HOS, as it did in this case. This was fault, for which the Council was responsible, as it was not the correct Ombudsman scheme to refer to.
50. I am also concerned the Council, in limiting its role in reviewing decisions and considering complaints to the extent it does, is failing to properly monitor WDH’s activities on its behalf. However, I recognise the Council was acting in good faith following a previous Assessment decision and welcome the steps it has agreed to take to address this concern.

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Agreed action

51. The Council will, within one month of the date of the final decision, apologise to Mr X for WDH’s failure to respond properly to his complaint about the OT’s assessment of his ability to use the bathroom safely, and for signposting him to the wrong Ombudsman scheme, and pay him £150 for the additional time and trouble Mr X was put to in pursuing the matter.
52. The Council will, within three months of the date of the final decision:
• meet with WDH to clarify when it should signpost to the Housing Ombudsman Service and when it should signpost to us;
• review its approach to ensure it has proper oversight of WDH’s activities in managing the housing register, and does not miss vital information about how services can be improved that could be gained for considering complaints. It will report to us after three months and six months on the action it has taken as a result.

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Final decision

53. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman