Summary: Mrs B complains that the Council did not properly assess her children’s medical needs when considering the family’s priority and eligibility under its housing allocations policy. There was fault in the way the Council assessed the children’s medical needs. However, the Ombudsman does not consider it likely that the family have missed out on a property as a result. The Ombudsman has made recommendations for the Council to address the fault in the way it considered the application and has asked it to apologise to Mrs B and provide a financial remedy for her time and trouble, and distress.

The complaint

1. Mrs B complains that the Council has failed to properly assess her children’s medical needs when considering the family’s priority and eligibility for rehousing under the Council’s housing allocations policy.

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The Ombudsman’s role and powers

2. 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)
3. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The Ombudsman may not find fault with a council’s assessment of a housing application if it has carried this out in line with its published allocations scheme.
5. If we are satisfied with an organisation’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. Mrs B complained to the Ombudsman in June 2021 about the Council’s handling of her housing application. We would normally expect a complaint to be made to the Ombudsman within 12 months of a complainant becoming aware of the matter complained about. However, as the Council’s consideration of the children’s medical needs began in November 2019, I have exercised discretion to consider Mrs B’s complaint from that time, in order to consider whether the family might reasonably have been rehoused earlier.
7. I have considered Mrs B’s written complaint and supporting papers and discussed her complaint with her. I have made enquiries of the Council and considered its response. I have had regard to the Council’s Allocations Policy. I have also sent Mrs B and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

Housing allocations

8. 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))
9. 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))

The Council’s allocations policy

10. Choice-based lettings: The Council is a partner in a local choice-based lettings scheme. This means that housing applicants can apply for available properties. This is called bidding.
11. Direct allocation: the Council offers some properties directly to applicants. This means the properties are not advertised for bids. So far as is relevant to this complaint, this includes where a property is identified as meeting the needs of a high priority household.
12. Property size: the Council assesses how many bedrooms an applicant household is eligible for. So far as is relevant to this complaint, it allows one bedroom for:
• every adult couple;
• any two children under 10;
• any two children of the same sex aged under 16;
• children who cannot share a bedroom because of a disability or medical condition.
13. Overcrowding: The Allocations Policy says the Council will award priority where a household is considered severely overcrowded where the group seeking to move includes four people living in one-bedroom accommodation.
14. Medical needs: The Allocations Policy says the Council provides reasonable preference to applicants who must move because they have medical needs and/or disability, which are seriously affected by the design of their home.
15. If the applicant’s health or disability is affected by the design of their home, they will be referred to the Council’s Medical Adviser. The Medical Adviser will assess the information and make recommendations to the Council’s Access and Allocation Manager about whether or not the applicant should have a medical priority due to their health or disability. If priority is not agreed, the Medical Adviser will say why not.
16. Multiple needs: The Allocations Policy says that any applicant or household, who is in more than one reasonable preference category, will have their application date backdated by one month. Where a household contains more than one person with a medical priority, the effective date will be backdated by one month for each additional person who has medical priority.
17. Priority band: The Council places applicants who qualify to join the housing register in a priority band from Band A (highest priority) to Band C (lowest priority). This priority is the first factor the Council uses to allocate a property. The second factor is the date on which priority was awarded.
18. So far as is relevant to this complaint:
• Band B1 is for applicants with reasonable preference whom the Council must prioritise for housing. This includes households with medical needs seriously affected by the design of the home, and severely overcrowded households.
• Band C is for all other applicants on the housing register.
19. Number of offers/nominations: Under the Council’s policy, it will make only one formal accommodation offer to applicants in Bands A, B1 and B2. If the offer is refused, the Council will review the application and will normally remove the priority and the applicant will return to Band C.
20. Case Review Panel: Applicants with exceptional urgent needs are referred to a Case Review Panel chaired by an Allocations Manager, who will review the written information and evidence provided and decide whether there is an urgent need which warrants higher priority.
21. Review of decisions: A review of a decision made at the Case Review Panel will first be considered by a reconvened panel who will consider any additional information or evidence. If the applicant still disagrees with the panel’s decision, a senior officer not involved in the original decision will conduct the review. The Council’s policy does not specify a time to complete reviews but statutory guidance on the allocation of accommodation says that reviews should normally be completed within a set deadline and eight weeks is suggested as reasonable.

What happened

22. Mr and Mrs B live in a privately rented one-bedroom first-floor flat together with their twin sons who are of primary school age. Both the boys have autism, global development delay, sleep issues, and are being assessed for ADHD. They are non-verbal. The boys need constant supervision, have no sense of danger and Mrs B is concerned that there is a risk that they will open the window and jump or fall out. Due to the boys’ needs, Mr and Mrs B cannot work full time.
23. Mrs B and both boys sleep in a double bed in the bedroom. One child wakes the other child up in the night. Her husband has to sleep on the sofa in the lounge.
24. In 2018, the family applied to join the housing register. Mrs B explained the family’s housing circumstances and the family was awarded B1 priority for overcrowding, with eligibility for a two-bedroom property.
25. Following the priority award, Mrs B successfully bid for a two-bedroom flat and was offered the property in October 2019. However, she declined the property as she felt that her children would be unsafe in an open-plan kitchen. The Council considered the offered property suitable, so the family’s priority was returned to Band C.
26. In November 2019, Mrs B submitted medical forms to the Council to have her sons’ medical needs assessed. She provided medical statutory assessment forms setting out her children’s severe developmental delay, and a letter from the boys’ school explained why the offered accommodation was unsuitable.
27. The Council passed the application and supporting evidence to its Medical Adviser who awarded B1 priority on medical grounds for a two-bedroom flat or maisonette, on the first floor. A house was not considered essential, but Mrs B could bid for any property type with C priority.
28. In late 2020, Mrs B contacted her MP and asked for his help. She provided new evidence from the boys’ GP about the difficulties caused by the family’s sleeping arrangements. She also provided a letter from the Council’s Special Educational Needs & Disability (SEND) Outreach Team setting out the difficulties with the children waking in the night, the impact on her and her husband who have to sleep in different rooms, and the risk of the children climbing on the windowsill and falling from the window. The letter clearly states that the children “…would benefit from having extra bedrooms”.
29. The Medical Adviser considered the new evidence but did not change his recommendation. He did not consider that the children needed exclusive bedrooms as they were five years of age. The Council wrote to Mrs B in February 2021 to confirm this.
30. Shortly after, Mrs B received a letter from a Consultant Community Paediatrician setting out the same concerns and stating that “…the family would be well served by a separate bedroom for each child”. The letter also suggested that the children would benefit from a garden. On her MP’s advice, Mrs B forwarded this to the Council for consideration.
31. The Council considered this evidence, including the letters from the consultant and the SEND Outreach Team at a Case Review Panel in March 2021. It wrote to Mrs B the following month and explained that it did not consider there were exceptional reasons to overturn the Medical Adviser’s recommendations.
32. Mrs B contacted the Council again through her MP in June 2021, and it explained why it did not consider that there were grounds to overturn the Medical Adviser’s recommendation. It also advised that, under Health and Safety legislation, window restrictors are required where there is a risk of falling from windows.
33. Shortly after, Mrs B submitted two further letters from a Specialty Doctor in Community Paediatrics. These reiterated the previous issues, but also provided greater detail on the extent and impact of one of the twins’ sleep and behavioural problems. The letter stated that “…they have not been prioritised for appropriate housing accommodation”.
34. The new information was passed to the Medical Adviser who commented that “For the reasons previously given, noting the sons' ages, I do not think that exclusive bedrooms are yet medically essential and an extra bedroom is not necessary on specific medical grounds”.
35. In the meantime, Mrs B complained to the Ombudsman who wrote to the Council. The Council considered Mrs B’s application further at a Case Review Panel in November 2021. It agreed eligibility for a three-bedroom ground- or first-floor flat or maisonette with garden access or open space - the priority date has been backdated two months to 8 October 2019 as there is more than one significant need (i.e., overcrowding and medical) and more than one person has medical needs. The Council advised Mrs B to contact her landlord to provide additional locks to make the windows more secure for her children.
36. Since then the Council has reviewed the way it considers allocations in response to Ombudsman decisions on two other cases – 20 013 740 and 21 004 654 which both have relevance to Mrs B’s complaint:
• The Council will ensure that the Council, not its Medical Adviser, is making decisions whether to award medical priority, as set out in its policy.
• It has also reviewed its policy so that families with disabilities, without a specific assessed need for a house, are not placed at a disadvantage to those without disabilities even though they might have a greater need for a rehousing. As a result, with effect from 15 February 2022, applicants awarded a priority rehousing band are able to bid for all property types except where there is a medical recommendation excluding them from doing so.

My assessment

Separate bedrooms

37. The Medical Adviser awarded B1 priority on medical grounds for a two-bedroom flat/maisonette in November 2019. He did not change his recommendation when new information was provided in February or August 2021.
38. I note that the new information sets out the impact on the whole family of the current arrangements. However, the Medical Adviser has explained that he has seen nothing in the evidence provided to say that separate bedrooms are essential. I do not underestimate the difficulty that the present living arrangements have caused the family. However, having viewed the correspondence, I have also seen nothing in the supporting evidence which states that separate bedrooms are essential. It is therefore not for me to question the Medical Adviser’s judgment that separate bedrooms were not essential.
39. That said, as set out in paragraph 36 above, the Council should have reached its own decisions rather than just accepting the Medical Adviser’s recommendations. Passing on the recommendation without making its own judgment was fault.
40. I have therefore gone on to consider whether this fault has caused injustice. I note that the Case Review Panel reviewed the medical evidence, including the letter from the SEND Outreach Team, and recommendations in April 2021, but decided that there was no need at that stage for separate bedrooms. I cannot therefore conclude that the Council should have determined at that stage that there was a need for separate bedrooms.
41. However, the Council did not review the evidence received in June 2021 and the Medical Assessor’s August 2021 recommendations until November 2021, at which point it changed its assessment of need to a three-bedroom property. I consider that, had the Council reviewed the supporting evidence when the Medical Adviser provided his recommendations in August 2021, it would have changed the room eligibility at that stage.

Need for outside space

42. The request for outside space was first raised by the Consultant Community Paediatrician in her letter in February 2021. As this was new information, the Council should have referred this back to the Medical Adviser to consider. It did not do so but reviewed the further information at the Case Review Panel. It then made no reference to this in its decision letter in April 2021. This was fault.
43. There were further references to the need for outside space for the children in the correspondence passed to the Medical Adviser in June 2021. However, the Medical Adviser’s recommendations make no reference to this matter. So, there is nothing to suggest that the Council (or its Medical Adviser) considered the need for outside space until the review decision in November 2021 when it accepted this need. This was fault. Had the Council considered this matter properly when it reviewed the Medical Adviser’s recommendations, it is reasonable to conclude that it would have accepted the need for outside space in August 2021.

Equalities issues

44. As also set out in paragraph 36, under the Council’s policy the award of medical priority for a flat/maisonette but not for a house means that an applicant may have B1 priority for a flat/maisonette, but only C priority for a house. So, an applicant with no medical priority, but with a longer priority date, might successfully bid for a house while an applicant in Band B1 with high medical priority would be unsuccessful in bidding due to having a shorter band C priority date.
45. This approach was fault and applied to Mrs B’s application. The Council has now amended its policy so Mrs B may bid for any property type under B1 priority.

Safety

46. The Government publishes guidance on How to rent a safe home on the Gov.uk website. This suggests that it is the responsibility of landlords to ensure that properties are safe, and they may need to fit window restrictors to prevent falls.
47. Mrs B and professionals involved in the children’s care have referred to the risk of the children falling from first floor windows since late 2020. But the Council did not refer to this issue until June 2021 when it explained that this was covered by health and safety legislation, and it was not until November 2021 that it advised Mrs B to take this matter up with her landlord.
48. I do not see grounds to question the Council’s position that this is a matter for the landlord to resolve, and so not grounds for additional housing priority. However, the Council has duties in relation to the management and regulation of private rental housing. Where children’s health was potentially at risk, the Council should have provided appropriate advice to Mr and Mrs B and, if necessary, the landlord at an early stage. Not doing so was fault.

Has the fault resulted in injustice to Mrs B and her family?

49. I have therefore gone on to consider whether the fault in the consideration of Mrs B’s application has caused injustice. In so doing, I have reviewed successful bids under Choice Based Lettings since November 2020.
50. I have firstly considered whether Mrs B would have been able to bid successfully for a three-bedroom flat or maisonette had the Council awarded three-bedroom eligibility earlier. However, there have been no successful bids for three-bedroom flats or maisonettes with the same or lower banding and with a shorter priority date since Mrs B provided additional supporting evidence in November 2020. I cannot therefore conclude that Mrs B has missed out on bidding successfully for properties as a result of delay in awarding three-bedroom eligibility.
51. I have also considered whether Mrs B has been disadvantaged by not being able to bid for houses when applicants without medical priority were able to do so. The bidding history under Choice Based Lettings shows that there have been a few occasions where applicants with C banding and long priority dates or B1 banding with higher priority dates have bid successfully for three-bedroom houses.
52. Had Mrs B been able to bid for houses with B1 priority, then she would have had had higher priority than these successful applicants. However, every other applicant with B1 or higher priority for a flat/maisonette would also have been able to bid for houses, so it seems highly likely that there would have been applicants with higher priority than Mrs B for these properties. I cannot therefore conclude that Mrs B has missed out on a three-bedroom property as a result of this fault.
53. There has however been fault in the way the Council has dealt with the application, and Mrs B has been put to time and trouble in seeking to have her application considered properly.

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Agreed action

54. As a remedy for the injustice to Mrs B, the Council has agreed to the Ombudsman’s recommendations that within one month of the decision date on this complaint, it:
• apologise to Mrs B and pay her £300 in recognition of her distress and time and trouble pursuing this complaint;
• remind officers that it is for the Council to make its own decisions on medical priority, and that its decision letters should reflect this and set out why it has reached its decisions;
• remind officers of the need to provide prompt and appropriate advice where an applicant raises concerns about safety; and
• remind its Medical Adviser to take account of all relevant factors when making recommendations to the Council.

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Final decision

55. I have closed my investigation into Mrs B’s complaint because I consider the agreed actions are a suitable remedy for the injustice to Mrs B and her family.

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Investigator's decision on behalf of the Ombudsman