Summary: Mrs Y complains the Council was at fault in the way it considered her housing register application and refused her application to join the housing register. We found fault as the Council did not clearly explain her appeal rights against its decision and wrongly listed her as living in a three bedroomed property. So, we have recommended a service improvement to the Council about its decision letters. But the fault did not cause Mrs Y an injustice, so we are completing our investigation.

The complaint

1. Ms X complains for her mother Mrs Y the Council wrongly decided she does not qualify for its housing register as she has no housing need.
2. Ms X says the Council
• failed to take proper account of her brother Z’s autism and his special needs, especially for settled accommodation.
• failed to consider awarding Mrs Y priority on welfare/hardship grounds in Z’s case.
• failed to take account of Z’s Education, Health and Care Plan (EHCP) when reviewing its decision.
• Ms X and Mrs Y are unhappy the reviewing officer said the impact on Z from not having a secure home was the same as for any child. They do not believe that is the case because of Z’s autism and health needs.
3. Ms X says their current accommodation is unsuitable and the Council’s decision causing distress to the family. Ms X wants the Council to review its decision, correctly apply its housing allocations policy and allow them onto the housing register.

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What I have investigated

4. I have investigated Mrs Y’s complaints about the way the Council considered and dealt with her housing register application. The final section of this statement explains my reasons for not investigating any concerns Mrs Y may have about the way the Council dealt with her homelessness application during our consideration of her complaint. I have included information about Mrs Y’s homeless situation to provide context to the Council’s response to her concerns.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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)
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 have read the papers submitted by Mrs Y and spoken to Ms X about the complaint. I considered the Council’s comments and the supporting documents it provided.
8. Mrs Y 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

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. (Housing Act 1996, section 166A(1) & (14))
10. Council’s 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 unreasonable behaviour.
11. 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 Housing Allocation Scheme

12. The Council’s scheme identifies classes of people who will not normally qualify for an allocation. This includes persons assessed as not meeting ‘the threshold of housing need’ as their circumstances do not warrant inclusion in any of the bands identified within the scheme.
13. Applicants who are assessed as not falling within one of the Council’s bands will be offered advice regarding their housing options.
14. The sections of the scheme relevant to this complaint include;
20. Medical assessment –
• 15.20.1- Where an applicant’s current housing is detrimental to their health, or a move to more suitable accommodation would have a positive effect on their health, they may ask to be awarded medical priority.
• 15.20 .4 - Applications for medical priority will be considered by the Council’s specialist housing teams which will assess the extent to which the applicant’s health is affected by their housing conditions and the expected benefits of providing suitable alternative housing.
• 15.20.8 - Where it is decided the applicant has a medical condition, but it is decided that this is not being significantly worsened by the current housing, no medical priority will be awarded.

15.21- Welfare/hardship assessments-

• 15.21. 1- This applies if at least 1 person in the household is vulnerable and less able to find settled or suitable accommodation.
• 15.21.2 -These applicants will have a need to move but may not get medical priority because their current housing may be suitable for their needs.
• 15.21.5- Applications for welfare priority will be considered by the Council’s specialist housing teams who will assess the extent to which the applicant’s welfare is affected by their housing conditions and the expected benefits of providing suitable alternative housing.

15.2 overcrowding

15. The Council’s section on overcrowding says that ‘overcrowding in the private sector will not lead to inclusion on the Housing Register and those affected will be given advice on how to alleviate this.’

Background to the complaint

16. This section sets out the key events in this case and is not intended to be a detailed chronology.
17. Mrs Y lives in a four- bedroomed privately rented house with Ms X, Z and two other adult siblings. Z has severe autism and behavioural problems.
18. Mrs Y submitted a housing application to the Council in December 2020 to join the housing register. Mrs Y sent a medical form in January 2021 outlining Z’s autism diagnosis, health conditions and behavioural problems with a draft EHCP for him dated June 2019. The Council sent the medical information to its specialist housing team (team) to consider in line with its allocations policy.
19. The team assessed the extent to which the applicant’s health was affected by their housing conditions and the expected benefits of providing suitable alternative housing. The team considered Mrs Y lived in accommodation with access to normal facilities and Z already had his own room so medical priority did not apply. The team noted Mrs Y’s housing needs were for a property no higher than the first floor whether it had a lift or not and for Z to have his own room. The team supported accommodation being near Z’s school.
20. The Council took account of the team’s recommendation. The Council emailed its decision to Mrs Y in February 2021. It told Mrs Y her application form stated she was adequately housed in her current accommodation. So, she did not meet the criteria for inclusion on the housing register and had no priority. The Council said this was consistent with its Housing Allocation policy and sent Mrs Y a link to access the policy. The Council advised Mrs Y to consider other available housing options or to look for her own accommodation and rent in the private sector.
21. Mrs Y responded she was unhappy with the decision and wished to appeal it.
22. Mrs Y submitted an appeal against the Council’s decision at the end of March 2021. Mrs Y said the Council failed to make her aware of the deadline (of 21 days) to submit her appeal and so she was over the deadline to respond. Mrs Y considered the deadline should not apply because she was unaware of the deadline and appealed on the following grounds;
• Mrs Y considered they met the requirements of housing band C (the Council’s lowest housing band). This was because they had a ‘moderate and medical or welfare need’ as both she and Z had a lifelong disability affecting their daily lives. Mrs Y’s disability was due to back pain. Mrs Y said she would send a supporting letter from their GP.
• Z had a serious medical problem and the effect of the current housing on his health was moderate/severe. So, Mrs considered Z’s needs alone meant they fell under band B or C and the medical assessment form she sent overlooked.
• Mrs Y considered that even if they were ‘adequately housed in their current accommodation’ they were also eligible under welfare/hardship grounds. This was because the Council’s policy said that if there was a vulnerable person in the household less able to find settled or suitable accommodation and may not get medical priority because the current house was suitable for their needs. Mrs Y said Z had a high need for settled accommodation because of his autism, was sensitive to change and they were vulnerable to this in the private sector having to move several times. Mrs Y said this had a detrimental impact on Z’s well-being and his school had sent a letter of support about it.
23. Mrs Y submitted their medical records, a supporting statement from Z’s school and asked for a review of the medical grounds of her application in April 2021. A reviewing officer sent Mrs Y a questionnaire about their current accommodation. The officer advised Mrs Y they would carry out a review of the Council’s decision within the 56 days required by the law.
24. In May 2021 Mrs Y told the Council their landlord asked them to leave the property.
25. The reviewing officer completed the review in May 2021 and upheld the original decision Mrs Y did not qualify for the housing register. The officer explained to Mrs Y the Council awarded priority to applications according to the criteria in its allocation policy. The officer was satisfied Mrs Y did not qualify for any extra priority for housing. The officer confirmed the Council had taken account of Mrs Y’s documents including the supporting letters from Z’s school, their GP, and the health assessment form.
26. The officer said Mrs Y did not qualify for the housing register as she did not have a priority. The officer noted Mrs Y suffered from back pain, but it was not affected by her living conditions. The officer noted Z’s autism, behavioural problems and Mrs Y’s comments Z struggled in the property as it was a small house. This meant Z had a small bedroom and he needed more space to run around. The officer noted Mrs Y’s concerns Z was anxious about the security of tenure of their privately rented house so she considered the family should have higher priority due to Z’s vulnerability.
27. The officer considered the original decision correct as the Council based medical priority on the current accommodation and need to move. The officer said Mrs Y’s view that Z needed to move as he could not cope with moving did not fit into any criteria in the housing allocations policy. The officer understood that people with autism benefited from having a secure base, so they do not keep moving but considered this applied equally to all children.
28. The officer noted Mrs Y’s need for three bedrooms, but she lived in a three bedroomed house, with outdoor space. The officer said it was for Mrs Y to decide on sleeping arrangements but would expect the family to maximise it for Z’s benefit. The officer did not consider that medical priority applied in Mrs Y’s case. And agreed with the original decision Mrs Y did not qualify for the housing register as she did not meet any of the criteria under any banding of the Housing Allocations policy.
29. The officer noted Mrs Y’s landlord had served notice on the property, but it did not affect the decision about the housing register. The officer noted Mrs Y had approached its housing need service about becoming homeless. But if the Council owed her a housing duty under homelessness legislation, then it would place her in band C, the band for applicants in lowest housing need.
30. In responding to my enquiries about the complaint the Council notes that Z is deemed to need his own room. Because of this and the ages and genders of the household the family need a four-bedroomed property. The Council apologised the review did not pick this up. But it would still not entitle Mrs Y to be on the housing register. This is because residents in private housing do not qualify to join the register if overcrowded by one room. The Council says if Mrs Y considers there is any further information it needs to be aware of then she should send it to be considered.
31. The Council also accepted that Ms Y did state on her application she lived in a four-bedroomed property. But due to an administrative error it listed Mrs Y as having three bedrooms on the system. The Council has offered to reassess Mrs Y’s application. But says it is likely she will be deemed adequately housed as she has a four bedroomed need and lives in a four bedroomed property, rather than being overcrowded by a bedroom. The result will still be that she is unable to join the housing register.
32. Mrs Y remains unhappy with the Council’s decision not to include her on the housing register.

Mrs Y’s homelessness application

33. Mrs Y approached the Council’s housing need service in May 2021 after receiving an eviction notice from her landlord. The Council allocated Mrs Y a caseworker who discussed the notice with her and asked for a signed consent form. The caseworker contacted Mrs Y in September 2021 as she had still not provided a copy of the notice. Mrs Y provided a copy at the end of September 2021. The Council did not consider the notice valid as it did not comply with interim legislation in place during the COVID-19 pandemic about extended notice periods. The landlord issued a two-month notice period on 8 April 2021 rather than the 6 months’ notice required. The caseworker unsuccessfully tried to contact Mrs Y by telephone to discuss it.
34. The Council issued a formal decision letter to Mrs Y in October 2021 about her homelessness application. The Council decided Mrs Y was not homeless as there was no current threat of homelessness. Mrs Y has the right of appeal against the decision if she disagrees with it. The Council says if Mrs Y has received any more documents from the landlord about taking back possession of the property, she should contact the Council.

My assessment

Housing application

35. It is not the role of the Ombudsman to say whether an applicant should be accepted onto the housing register or in what category of need they should be place. Our role is to review the process by which decisions are made. We cannot question the merits of decisions the Council has made or offer an opinion on the judgement of Council officers unless there is evidence of fault in the way the decisions were taken.
36. The evidence provided shows the Council considered Mrs Y’s application according to its housing allocations policy. This is because it referred the application to its specialist housing team to consider the medical information provided. The Council took account of the team’s recommendation that medical priority did not apply. The Council told Mrs Y of its decision it considered she had no housing need. There is no evidence of fault as the Council’s decision is in line with its policy. This says that where an applicant has a medical condition but is not significantly worsened by their current housing, then it will not award medical priority.

Right of review

37. The Council’s decision letter to Mrs Y on her housing application was an email stating she was adequately housed and gave her a link to the Council’s Housing Allocations policy. The Council’s email did not advise Mrs Y of her right of appeal. Although the policy if opened and read through does explain an applicant can appeal the decision and they have 21 days from the date of the decision to do so. The Housing Act 1996 requires the Council to notify the applicant of the right to request a review of this decision. I do not consider the Council’s email and link to the housing allocation policy adequate enough to inform Mrs X about her right of appeal and the timescales in which she needed to do so. I consider this fault by the Council as it should give clear information to applicants on their right of appeal. I recommend the Council reviews its decision letters to applicants to advise of any appeal rights they may have. And the timescales in which to submit them, as well as including a link to its Housing Allocations policy.
38. While I have found fault by the Council in failing to clearly advise Ms Y of her appeal rights and timescale to submit an appeal, I do not consider it has caused her a significant injustice. This is because Mrs Y was able to submit an appeal and it the Council considered it even though it was submitted beyond the 21-day deadline.

Mrs Y’s appeal against the Council’s decision

39. The evidence shows the review took account of the medical form and all supporting documents submitted by Mrs Y. This included the supporting letters from the GP and Z’s school and the EHCP which did not mention Z’s housing need. The review considered Mrs Y’s current accommodation met the family’s needs.
40. The review also took account of Mrs Y’s medical condition that she had back pain and caused her to struggle at times. But the review concluded this was not affected by her housing as she lives in a house.
41. Mrs Y complained that Z’s needs are different from any other child. However, while the Council appreciates that people with high levels of autism benefit from having a secure base, so they do not keep moving, it considers it applies equally to all children. And the lack of security of tenure in the private sector not something that can be addressed in the review. It is unfortunate that Mrs Y does not agree with the Council’s view. But it shows the Council and reviewing officer took Z’s autism and health conditions into account when reaching a decision. I do not consider there is evidence of fault by the Council in the way the review took account of the medical grounds of Mrs Y’s appeal.
42. However, the Council accepts the review failed to refer to Z’s need to have his own bedroom and there was a four bedroomed need for Mrs Y’s family. It has also admitted it wrongly listed Mrs X as living in a three-bedroomed property when she lives in a four-bedroomed house. I consider this is fault by the Council as it has wrongly recorded Mrs Y’s circumstances when inputting information into her housing application. But I do not consider the fault has caused an injustice to Mrs Y. This is because the Council’s decision that Mrs Y was not eligible to join the housing register would have been the same but for the fault. Because Mrs Y lives in a four bedroomed house and has a four bedroomed need the Council is likely to consider her adequately housed. If Mrs Y did live in a three-bedroomed property and was overcrowded by one room then the Council would still not consider her eligible for the housing register according to its Housing Allocations policy.

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Agreed action

43. Although I consider the Council’s failure to explain clearly to Mrs Y her right of appeal did not cause her any injustice, I have recommended a service improvement to the Council. The Council agreed to the recommendation and will, within a month of the date of my final decision on the case:
• Review its decision letters to applicants to clearly advise of any appeal rights they may have and the timescales in which to submit an appeal, as well as including a link to its Housing Allocations policy.

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Final decision

44. I am completing my investigation. I have found fault in the way the Council dealt with Mrs Y’s housing application as it did not clearly explain her appeal rights and wrongly listed her as living in a three-bedroomed property. But the fault did not cause Mrs Y an injustice.

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Parts of the complaint that I did not investigate

45. I have not investigated any concerns Mrs Y may have about the way the Council dealt with her homelessness application and situation. This is because it is an ongoing matter the Council is dealing with. It has issued Mrs Y with a decision on her application and Mrs Y can appeal against the decision if she disagrees with the outcome.

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Investigator's decision on behalf of the Ombudsman