Summary: The Council is at fault as it delayed in seeking the specific information it required to determine if Mr Y was eligible to join the housing register. It also delayed in awarding band 3 priority. On balance, the delays caused Mr Y to miss successfully bidding on a three bedroom property and caused him and his family to live in unsuitable accommodation for longer than necessary. The Council has agreed to remedy this injustice by apologising to Mr Y, making a payment of £2000 and making a direct offer of housing to him.

The complaint

1. Ms X represents Mr Y. She complains the Council delayed in dealing with Mr Y’s housing application between 2018 and 2020.
2. Ms X also complains the Council delayed in awarding Mr Y a priority star between July and November 2020.
3. Ms X considers that as a result Mr Y and his family have remained in unsuitable accommodation for longer than necessary

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What I have investigated

4. I have investigated how the Council dealt with Mr Y’s housing application. The events of 2018 and 2019 are late. I have exercised discretion to consider how the Council dealt with Mr Y’s housing application from 2018 as it is necessary to consider the whole period in order to be able to reach a meaningful view on whether there was delay in how the Council dealt with the housing application.

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done (Local Government Act 1974, sections 26B and 34D, as amended)
6. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, (Local Government Act 1974, section 24A(6))

7. 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

8. I have:

• Considered the complaint and the information provided by Ms Y;
• Made enquiries of the Council and considered the information provided;
• Invited Ms X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

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))
10. 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))

11. 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.

12. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))
13. The Council’s housing allocations scheme applicable at the time of the complaint provided that applicants who work in the area are considered to have a local connection. The applicant had to be working for 16 hours or more per week for 9 out of the last 12 months.
14. The allocations scheme applicable at the time provided that applicants were prioritised within the priority bands by reference to a star system. Applicants who were statutorily overcrowded, were working or who were undertaking a voluntary contribution are awarded priority stars.

What happened

15. Mr Y, his wife, daughter and son moved from a room in a shared house to a studio flat in 2016. The family had one room for them all to live and sleep in.
16. In April 2018 Mr Y applied to be on the Council’s housing register to obtain more suitable accommodation. The Council declined Mr Y’s application as it considered he did not meet the local connection criteria. Mr Y requested a review of this decision as Mrs Y worked in the borough so satisfied the local connection criteria.
17. In July 2018 the Council reopened Mr Y’s application and requested he submit information in support of his application. Mr Y submitted some but not all of the required documents. The Council sent a further letter to Mr Y asking him to provide identity documents for him and his family. It also required Mrs Y to provide a letter from her employer confirming her address and number of hours she worked. Mr Y provided this information in August 2018.
18. In October 2018 the Council wrote to Mr Y to ask him to provide passports and evidence of child benefit for his children, a payslip and letter from employer confirming address and number of hours worked. The letter previously provided by Mrs Y’s employer did not include the hours she worked.
19. Between October and November 2018 Mr Y provided further documents but these did not include a letter from Mrs Y’s employer stating the hours she worked.
20. In February 2019 the Council asked Mr Y to complete a form confirming where the family slept in the studio flat.
21. Ms X had made a complaint in October 2018 about the time taken to deal with Mr Y’s housing application. She escalated the complaint to stage two of the Council’s complaints procedure in March 2019 as Mr Y’s housing application had not been decided. She said Mr Y had submitted all the required documents in November 2018. Ms X also asked the Council to ensure it awarded two priority stars for Mr Y for being a working household and for being statutorily overcrowded.
22. The Council advised Ms X that Mr Y had not provided all the required information regarding the sleeping arrangements in the studio flat and it also required Mrs Y’s contract of employment showing the hours worked. In further correspondence with Ms X, the Council acknowledged it had delayed in October 2018 in seeking evidence from Mr Y about his children. But it considered the delays were largely as a result of Mr Y not providing the requested information.
23. The Council advised Ms X that it considered Mrs Y did not meet the criteria for local connection on the basis of her employment as she had not demonstrated she worked 16 hours or more for the last nine months and she could not provide a contract of employment. The Council asked Mrs Y to provide payslips for the last nine months. Ms X provided the payslips. The Council’s records show it placed Mr and Mrs Y in band 3 for overcrowding with a work star and it notified Mr Y of the decision.
24. The Council then asked Mr Y to verify the information in his housing application. In late April 2019 the Council wrote to Mr Y setting out its decision on Mr Y’s request for a review of the Council’s decision that he was not eligible to join the housing register. The Council said the family did not meet the criteria for local connection by work. It also considered Mr Y had provided misleading information about when he and his family arrived in the country. It considered he was statutorily overcrowded but had deliberately worsened his circumstances by choosing to rent accommodation which placed family in a situation of extreme overcrowding. It therefore could not award priority to Mr Y on the basis of statutory overcrowding. The Council placed Mr Y’s household in band 4 on the basis he was resident in the borough and had reasonable preference. It also awarded a priority star for employment.
25. Ms X requested clarification as to whether the decision to place Mr Y in band 3 or band 4 was correct. The Council confirmed the letter advising Mr Y would be placed in band 3 was issued in error. Ms X then sought a review of the Council’s decision to place Mr Y in band 4. She considered Mr Y should be placed in band 3 as per the original decision, the family did not deliberately worsen their circumstances and conflicting information about when Mr Y arrived in the country were honest mistakes.
26. A senior officer reviewed the decision. He explained that the letter advising Mr Y he had been placed in band 3 was issued automatically and in error. It also said an application could be reassessed at any time. The Council upheld it decision that Mr Y had provided misleading information and had deliberately worsened his circumstances. It therefore considered that Mr Y had been correctly placed in band 4.
27. Mr Y’s representatives issued a pre action protocol letter in September 2019. The Council remained of the view it had correctly placed Mr Y in band 4.
28. In December 2019 Mr Y’s representatives requested he be removed from band 4 and placed in band 1. Mr Y’s representatives again disputed Mr Y had provided misleading information and deliberately worsened his circumstances. The Council refused the request. Mr Y’s representatives sought a review of this decision. The Council carried out a review and upheld its decision not to remove Mr Y from band 4.
29. Mr Y’s representatives submitted a pre action protocol letter in June 2020. The Council placed Mr Y in band 3 and backdated his priority to April 2018 when he first applied. I asked the Council why it increased and backdated Mr Y’s priority in response to the pre action protocol. The Council said response to my enquiries the Council has said it accepted the representations based on the information on the file at the time.
30. Ms X considers the delays in awarding Mr Y band 3 has caused Mr Y to miss out on successfully bidding for a suitable property and caused him and his family to remain in overcrowded accommodation for longer than necessary. This caused significant distress to them and had an impact on the children’s education. Ms X considers the Council wrongly Mr Y had provided misleading information and worsened his circumstances. Ms X also considered the Council should have awarded priority to Mr Y as soon as he applied as they were statutorily overcrowded.

Voluntary contribution star

31. In July 2020 Mr Y applied for a voluntary contribution star. The Council awarded the priority star in November 2020. Ms X has said Mr Y’s advocates had to chase the Council on a number of occasions before it awarded the star.
32. In August 2021 Ms X made a complaint to the Council about the delay in awarding the star. The Council has said it did not respond to the complaint at stage one of its complaints process. The Council’s stage two response refers to an officer discussing the complaint with Ms X at stage one. It confirmed that the working star and voluntary contribution stars had been awarded to Mr Y. It did not account for any delay.

Analysis

33. The Council initially refused Mr Y’s application for the housing register and then reopened it to allow Mr Y to submit evidence to show he had local connection by virtue of his wife’s employment. The process of gathering evidence to show whether Mr Y was eligible to join the housing register took a significant amount of time. I acknowledge Mr Y delayed in providing all the documents required. But, on balance, I consider the time taken amounts to fault. I set out my reasons below.
34. The key evidence required by the Council was proof of Mrs Y’s employment. There is evidence of delay in the Council requesting this information as it did not make enquiries of Mr Y which were targeted to demonstrate the local connection by virtue of Mrs Y’s employment. The Council did not request a letter from Mrs Y’s employer and evidence of her hours when it first requested documents in July 2018. It only requested this in August 2018. When the letter did not provide the required information, the Council did not request the contract or nine months’ worth of payslips to evidence Ms Y’s hours until March 2019. This was the evidence which would provide the information the Council needed to determine if Mrs Y had local connection. So, it would have been appropriate for the Council to have requested this evidence sooner. The lack of targeted enquiries of Mr Y in response to his review request meant the provision of this information was delayed.
35. The Council has acknowledged it delayed in requesting the children’s identity documents. There is also no evidence the Council took action to progress Mr Y’s application between November 2018 and February 2019 which added to the delay. So, I consider the Council delayed in dealing with and deciding Mr Y’s housing application.
36. On balance, I consider the Council is at fault for not awarding band 3 priority to Mr Y when it determined his application in 2019. The Council said it accepted Mr Y’s representative’s arguments that he had not deliberately worsened his circumstances based on the information on file at the time. Ms X and Mr Y’s representatives had sought reviews of Mr Y’s priority band in 2019 on grounds including he had not deliberately worsened his circumstances. The Council has not suggested that any new evidence caused it to change its decision or provided reasons for its change of position. So, I consider the Council should have awarded band 3 when it determined the application in 2019. Had it done so, the Council would have also awarded a statutory overcrowding star to Mr Y in addition to the employment star. The Council would also have awarded the employment star sooner if it had not delayed in dealing with and deciding MrY’s housing application.
37. The question for me is whether the Council’s delay in progressing Mr Y’s housing application and the delay in awarding band 3 priority caused Mr Y to miss an offer of a property.
38. The Council has provided a breakdown of three bedroom properties let to band 3 applicants between 2018 and 2020. The breakdown also provides details of the applicant’s priority and effective date. The breakdown shows the Council let approximately eight properties between 2019 and 2020 to applicants with effective dates from April 2018 onwards and with the same or fewer priority stars as Mr Y. On balance, I consider it is likely Mr Y would have successfully bid on a suitable property at some point between 2019 and June 2020. I cannot say precisely when but the figures suggest Mr Y would have successfully made a bid.
39. In coming to this view, I have taken account of the fact that Mr Y has not successfully bid since he received band 3 priority plus employment, statutory overcrowding and volunteering stars. But in view of the breakdown provided by the Council and the revisions to its allocations scheme in 2020, I consider Mr Y would have successfully bid at some point between 2019 and 2020.
40. I therefore consider Mr Y and his family have lived in unsuitable accommodation for longer than necessary. We would generally recommend a payment per month for the time spent in unsuitable accommodation. However, I cannot specifically say when Mr Y would have made a successful bid between 2019 and 2020 so this is not an appropriate basis for a remedy. But Mr Y and his family have been caused significant distress by living in unsuitable accommodation for longer than necessary. The Council should therefore remedy this injustice to by making a payment of £2000 to Mr Y to acknowledge the distress. This is a higher payment than we normally recommend for distress. But I consider it is proportionate to acknowledge the impact of living in overcrowded accommodation for longer than necessary. The Council should also offer the next available suitable three bedroom property to Mr Y.
41. The Council disagrees with my findings that it delayed in dealing with Mr Y’s housing application and delay in awarding band 3 priority. But it has agreed to my recommendations to remedy Mr Y’s injustice.

Voluntary Star

42. Ms X has complained the Council delayed in awarding a voluntary contribution priority star between July and November 2020. The Council’s stage two response to Ms X does not account for the time taken in awarding the star. But it is not proportionate to investigate this matter further. This is because I have concluded, on balance, that Mr Y would have made a successful bid between 2019 and 2020 but for the delays by the Council. I therefore cannot achieve anymore for Mr Y by pursuing this matter further.

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Agreed action

43. That the Council:
1. Sends a written apology and makes a payment of £2000 to Mr Y to acknowledge the distress caused to him and his family by living in unsuitable accommodation for longer than necessary. The Council should take this action within one month of my final decision.
2. Makes a direct offer to Mr Y of the next available, suitable three bedroom property.
3. Reviews its procedures for making enquiries on housing applications to ensure it is seeks the specific information required to determine an applicant’s eligibility for the housing register in order to prevent the delays experienced in this case. The Council should take this action within three months of my final decision.

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Final decision

44. The Council is at fault as it delayed in seeking the specific information it required to determine if Mr Y was eligible to join the housing register. It also delayed in awarding band 3 priority. On balance, the delays caused Mr Y to miss successfully bidding on a three bedroom property and caused him and his family to live in unsuitable accommodation for longer than necessary. The Council has agreed an appropriate and proportionate remedy for Mr Y’s injustice so I have completed my investigation.

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Parts of the complaint that I did not investigate

45. During the course of my investigation Ms X raised that the Council should have invited a homelessness application from Mr Y when he applied for the housing register as it was aware his property was not reasonable to occupy. Ms X has also raised that the Council should have carried out a Housing, Health and Safety rating assessment to determine if it should take enforcement action due to the overcrowding and other issues.
46. In order to investigate these matters I would have to examine the Council’s actions in 2018 and 2019 in relation to its homelessness and private sector housing/environmental health services. Ms X has not raised these matters with the Council or us before now so they are late. Ms X is a representative of a community organisation which assists with matters such as housing and Mr Y has also been legally represented at times. So, it is reasonable to expect Ms X or Mr Y’s legal representative to have raised these matters with the Council and the Ombudsman before now. I therefore do not consider there are good reasons to exercise discretion to investigate these matters now.

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Investigator's decision on behalf of the Ombudsman