Summary: we upheld part of Miss X’s complaint about the way the Council assessed her Housing Register application. But we did not find fault in the way the Council made the decision not to award Band 1 priority on medical grounds.

The complaint

1. Miss X is a Council tenant who applied for rehousing on medical grounds. She complained that the Council did not properly consider the medical evidence she submitted which supports an urgent need to move. She says it did not explain why she does not meet the criteria for Band 1 urgent medical priority.
2. Miss X says she and her family are living in overcrowded and unsuitable accommodation which is in poor condition. Her partner has a chronic bowel condition and he and their eldest child both have asthma. Her youngest child has skin conditions. Miss X says damp and mould in the flat aggravate their medical conditions. Miss X’s partner also needs a second toilet for medical reasons.

Back to top

What I have investigated

3. I have investigated the way the Council considered the medical evidence and assessed Miss X’s priority for the purpose of her Housing Register application. I have considered the medical assessments and decisions the Council made in the period before Miss X complained to us in early April 2021.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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)
7. When we find a council was at fault, we then consider whether the fault 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)
8. 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)

Back to top

How I considered this complaint

9. I have spoken to Miss X and considered all the documents and photographs she sent me.
10. I made enquiries to the Council and obtained records of medical assessments and reviews completed before April 2021. I read the relevant sections of the Council’s housing allocations policy.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

The relevant law

The published scheme

12. 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

13. 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))

Decisions and reviews

14. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

The Council’s housing allocations scheme and priority bands

15. Following a housing needs assessment, the Council places applicants who qualify to join its Housing Needs Register in one of four priority bands. Where the Council agrees an applicant needs to move on medical grounds, it will award one of three priority bands depending on the urgency of the need:
• Band 1 – urgent need to move – this applies where a member of the household has a life threatening medical condition, which has been assessed as a special medical priority, and which is seriously affected by the current accommodation.
• Band 2 – high need to move – this applies where the Council decides a household has a high priority for medical or social reasons.
• Band 3 – identified housing need – this applies where a household has a moderate medical priority and needs to move for medical or social reasons, or due to unsatisfactory housing conditions.
16. The policy says a suitably trained senior officer will consider applications for housing on medical grounds. When necessary, the senior officer will seek the opinion of the GP, other health professional and the Council’s medical adviser. The Council has a contract with a company which uses qualified medical practitioners to review cases and give advice to local authorities. In this statement, I refer to this company as the Council’s external medical adviser.
17. The policy also gives priority to overcrowded households. It says a household living in one bedroom self-contained accommodation, where a parent shares a bedroom with a child aged three or older, is entitled to Band 2 priority.
18. A single adult or couple with two children of the same sex aged under the age of 16 can bid for a two bedroom property.
19. The Council’s policy says it will normally complete a review within eight weeks of the request. It will notify the applicant in writing of the review decision and give reasons.

Miss X’s housing needs

20. Miss X lives with her partner, whom I shall call Mr Y, and their two young children, in a one bedroom Council flat. The children are both under five and the same sex.
21. Miss X has reported problems with mould and damp to the Council’s Housing Service. In January 2020 a Council surveyor inspected the flat. He found no evidence of penetrating damp or leaks. But he reported high humidity levels which would cause condensation and saw some mould on the bedroom wall. He gave Miss X advice about keeping the flat well ventilated. He recommended the Housing Service should install upgraded extractor fans to improve ventilation. The Council completed these works and also replaced some radiators. Miss X says these measures were ineffective and the mould is still present. The Housing Service told Miss X there is nothing more it can do to improve conditions. Miss X has complained to the Housing Ombudsman about this matter.
22. Mr Y has asthma, a bowel condition and mental health conditions. Their eldest child has asthma and the youngest child has skin conditions. Mr Y and the eldest child have breathing difficulties and coughing fits and regularly use inhalers. Miss X says her eldest child’s breathing difficulties are made worse by the mould and damp in the flat. She says this could potentially be life-threatening.
23. Miss X qualified to join the Council’s Housing Register. The Council awarded Band 2 priority from late March 2020 when Miss X’s eldest child was three years old. The couple were sharing a one bedroom property with a child aged three or over which met the criteria for Band 2.
24. Miss X considers the family’s combined medical needs are urgent enough to justify Band 1 medical priority. Since 2020 Miss X and Mr Y have sent the Council several medical self-assessment forms and a significant amount of evidence from the family’s GP and other health professionals. An Occupational Therapist assessed Mr Y’s housing needs and provided a report. These reports and letters give details of the family members’ medical conditions and treatment and describe the impact of the current accommodation on their health.

Medical assessments

25. In early June 2020 Miss X’s partner completed a medical self-assessment form. He explained he needed urgent and frequent access to a toilet because of his bowel condition to prevent accidents. As his eldest child was toilet training, and there was only one toilet in the flat, this was difficult.
26. In July 2020 the Council’s external medical adviser reviewed the form and recommended Mr Y needed a property with two toilets, or a property that could be adapted to provide a second toilet. An officer considered this advice and awarded Mr Y moderate medical priority in late August 2020.
27. In mid-September 2020 Mr Y delivered a letter from his consultant to the Council’s reception. It reiterated Mr Y’s frequent need for urgent access to the toilet and supported a move to a property with two toilets. Mr Y later sent an email asking the Council to reconsider its decision on his priority to take account of the consultant’s opinion.
28. In December 2020 an Occupational Therapist from the County Council completed a housing needs report for Mr Y. This also focused on Mr Y’s toileting needs. She referred to the consultant’s letter. She explained Mr Y often spent half an hour in the toilet which prevented other family members using it.
29. The Occupational Therapist said there was not enough space to adapt the flat to install a second WC. She also noted that the flat was, in any event, too small for the family’s needs. She therefore said Mr Y needed to move to a property with two toilets. Harlow Council received this report in early January 2021.
30. In January 2021 Miss X completed medical self-assessment forms for both children. She said her eldest child had coughing fits and wheezed at night. She considered the mould in the flat put him at risk of a severe asthma attack and infections. She also expressed her view that mould in the flat was likely to have caused her youngest child’s skin condition.
31. In February 2021 the GP provided a letter confirming Mr Y’s asthma and a separate health condition. He asked the Council to review their application to take account of these conditions.
32. In mid-February 2021 a senior officer reviewed the new medical evidence and the Occupational Therapist’s report. The senior officer approved the need for a property with two WCs and suggested a new build property may be suitable because they often have two WCs. The senior officer ticked the box to indicate this was a special medical need.
33. On 23 March 2021 the Council received a further letter from Mr Y’s GP. He said Mr Y needed to use the toilet about 10-15 times a day. He also referred to his long-standing asthma and mental health conditions. The GP said the mould in the flat and their living conditions were making Mr Y’s, and his eldest child’s, asthma worse. He recommended they should be moved urgently to a larger property with two toilets.
34. On 24 March 2021 the Council’s external medical adviser did a comprehensive review of all the medical evidence and forms submitted for Mr Y and his two children since 2019. This included letters from the GP, Mr Y’s consultant and the Occupational Therapist’s housing needs report. The medical adviser noted that the children were not under specialist paediatric or hospital care for their medical conditions and were treated by the GP with standard medication. In his view there was no evidence that the children’s conditions were caused, or significantly affected, by the conditions in the flat. He said it was the landlord’s responsibility to resolve any issues with mould. Overcrowding was not a medical issue and it attracted priority under a different part of the allocations scheme. He sent a note of his advice to the Team Leader in the Housing Options & Advice team. He recommended the Council should not award medical priority.
35. On 30 March the Team Leader wrote to Miss X and Mr Y after considering the external medical adviser’s opinion and medical evidence. She said the outcome was no change to the existing moderate medical award for Mr Y and no additional priority was awarded for the children. The Team Leader also said a property with two WCs would be suitable but she did not consider it essential.
36. The Team Leader therefore did not accept the external medical adviser’s opinion that the Council should not award medical priority. She decided Mr Y should keep the moderate medical priority previously awarded and confirmed this in her letter. As moderate medical priority is in the lower Band 3, the outcome was that Miss X kept Band 2 priority for overcrowding.
37. The Council completed two further medical assessments in April and May 2021 when it received new correspondence from Mr Y’s GP and the Occupational Therapist. Both these assessments happened after Miss X complained to us so we did not consider them in this investigation. However I have noted there was no change to the previous decisions: moderate medical priority for Mr Y and a property with two WCs was suitable but not essential.

Examples of cases where the Council awarded Band 1 medical priority

38. The Council’s housing allocations policy does not give specific examples of circumstances which would lead it to award Band 1 priority for urgent medical needs. The Council must consider every case on its merits and it would risk fettering its discretion if the policy was too prescriptive about the circumstances when it would award Band 1 priority.
39. However the Council provided anonymised details of cases where it had awarded Band 1 medical priority to illustrate the exceptional and urgent medical needs of these households. These included:
• An applicant who was a full-time wheelchair user and could not access rooms in the current accommodation to use essential facilities. Consequently the person had to strip-wash and use a commode because they could not get into the bathroom or toilet. They were at risk of being trapped in the accommodation in an emergency. They also faced other risks due to the lack of space to manoeuvre the wheelchair inside the property;
• A terminally ill person living in unsuitable accommodation which was shared with relatives;
• A parent with young children who was permanently disabled and bedbound and unable to access essential facilities in the current accommodation. The property could not be adapted to meet their needs.

My analysis

40. Band 1 medical priority is reserved for the most urgent cases and the Council has given some examples. Miss X says the conditions in her current flat have a serious adverse impact on her partner and children’s health. She firmly believes their circumstances meet the criteria for Band 1 medical priority.
41. The Council has reviewed Miss X’s priority band. It took into account the information Miss X and Mr Y gave on the medical self-assessment forms, along with extensive evidence from the GP and other health professionals, including the Occupational Therapist who assessed Mr Y. It also sought advice from its external medical adviser. The decision that Mr Y should keep the moderate medical priority award (Band 3) was made by a senior officer following a review of all this evidence and advice. She did not accept the external medical adviser’s recommendation not to award medical priority.
42. I did not find fault in the process the Council followed when it made the decision on Miss X’s priority band and later reviewed it to take account of new medical evidence. Miss X strongly disagrees with the moderate medical priority award for Mr Y. She believes the medical evidence is overwhelming and supports the need for urgent Band 1 medical priority. But the Ombudsman cannot substitute his decision simply because Miss X believes the Council’s decision is wrong. Unless we find fault in the decision-making process, we cannot criticise the outcome.
43. The Council accepts Miss X and her family live in accommodation which is too small for their needs. It awarded Band 2 priority for this reason. That is the correct priority under the housing allocations scheme for a household in a one bedroom property with a child over three years old.
44. I shall turn now to Mr Y’s need for a second WC. The medical evidence from Mr Y’s GP and consultant, together with the Occupational Therapist’s report, indicate this was essential due to the urgency and frequency of his need to access the toilet. In February 2021 a senior officer approved the need for a property with two WCs and identified it as a special medical need. I have seen nothing in the medical evidence submitted since then to indicate that Mr Y’s medical needs have changed and he no longer requires a second WC. There seems to be no cogent reason for the senior officer to have decided in late March 2021 that a property with a second WC was no longer essential but desirable. I also note that she did not explain the reasons for this change in the decision letter she sent to Miss X. This was fault and it caused injustice to Miss X and Mr Y because it led the Council to override an earlier assessment when there seems to have been no new medical evidence or change in their circumstances which would justify that.

Back to top

Agreed action

45. Within one month of my final decision, a different senior officer will carry out a fresh review of Mr Y’s need for a property with two WCs after considering all the medical evidence provided so far. The senior officer should consider whether a property with an additional WC is essential in view of Mr Y’s medical need. The officer should write to inform Miss X of the review decision and give adequate reasons. The Council should send us a copy of the review decision letter.
46. The Council accepted my recommendation to apologise in writing to Miss X and Mr Y. But Miss X said she did not want an apology so there is no need for the Council to make one.

Back to top

Final decision

47. I have completed the investigation and found fault causing injustice in relation to one part of the complaint. I did not find fault with the way the Council decided not to award Band 1 priority on medical grounds.

Back to top

Parts of the complaint that I did not investigate

48. I did not investigate the Council’s decision not to approve Miss X for a management transfer or the action it took as her landlord to carry out works to tackle the condensation and mould in the flat. This concerns the Council’s role as a landlord and its management of social housing. We have no jurisdiction to investigate for the reasons given in paragraph 5. Miss X has complained to the Housing Ombudsman about these matters.

Back to top

Investigator's decision on behalf of the Ombudsman