Summary: Mr Y complains the Council failed to consider his children’s disability-related needs when it refused to allow him to bid on three-bedroom properties. We find the Council at fault. This caused Mr Y distress and he went to time and trouble complaining. To remedy the injustice, the Council has agreed to apologise to Mr Y, make him a payment and review its decision. The Council has also agreed to make several service improvements.

The complaint

1. The complainant, who I shall refer to here as Mr Y, and his family are living in a one-bedroom property and have applied to the Council’s Housing Register for help with housing. Mr Y complains the Council:
1. incorrectly refused to award him bedroom entitlement to bid on three-bedroom properties, meaning he remains entitled to bid on two-bedroom properties only; and
2. failed to consider the needs of his two children when refusing his application. Mr Y says his family needs three bedrooms to meet the needs of his two children who are both under ten years old. He says each child needs a room of their own because of their disabilities.
2. Mr Y says the family’s current living situation is significantly impacting their physical, mental and emotional wellbeing. He says this is affecting his children’s concentration at school.
3. Mr Y says his family are under great stress and the issues they are experiencing will continue if they live in a property with two bedrooms.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I considered the information provided by Mr Y and the Council. I spoke with Mr Y about his complaint.
7. Mr Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The Council’s housing allocations scheme

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))

10. The Council’s housing allocation scheme (2021) places qualifying applicants in one of four priority bands – Bands A to D – following an assessment of their housing needs.
11. Band A is the highest priority and is only awarded to households with an emergency and very severe housing need.
12. Band D is for applicants with reduced priority, specifically homelessness applicants who have not lived in the Council’s area continuously for ten years.
13. The Council may award an applicant additional priority, which will determine priorities between applicants in the reasonable and local groups.
14. Additional priority may be awarded to applicants with a local connection, meaning they have shown they have lived in the Council’s area continuously for at least ten years. This works in such a way that, for example, an applicant awarded Band B priority will be moved up to Band A if ten years continuous residency is shown.

Assessing a household’s bedroom needs

15. The Council’s housing allocation scheme says a couple with two children of the same sex under the age of ten usually require a two-bedroom property. But, in exceptional circumstances, larger accommodation than this may be considered if recommended by a specialist advisor, such as a Council medical adviser or its occupational therapy service.
16. The Council’s leaflet “Understanding Medical Assessments”, which is sent to applicants in cases where it refuses a request for an extra bedroom, says:

Extra bedroom on medical grounds:

The council only awards extra bedrooms in exceptional circumstances. The medical advisor will discuss individual cases with other health professionals before deciding if an extra bedroom is essential to maintain health and well being.

While we will consider the needs of a family to protect a child with challenging behaviour, we cannot guarantee that priority will be given for an extra bedroom. Ultimately it is the parent’s duty to create a safe environment to minimise the potential risk of harm.

Appealing against a decision

17. Under the Council’s housing allocation scheme, applicants have the right to ask for a review of any decision made under the scheme that they do not agree with.
18. Requests for a review must normally be made:

• in writing and
• within 21 days of the date of the decision being appealed.

Equality Act 2010

19. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
20. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
21. The ‘protected characteristics’ referred to in the Act includes disability.
22. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
23. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

What happened

24. Mr Y lives in a one-bedroom property with his wife, Mrs Y, and their two sons, who I shall call B and C. They live in private rented accommodation.
25. Mr Y applied to the Council’s Housing Register for help with housing. Mr Y said he needs three bedrooms to meet the disability-related needs of his two children who are under ten years old. B has been diagnosed with autism spectrum disorder (ASD). B has an Education, Health and Care (EHC) Plan. C has ASD and attention deficit hyperactivity disorder (ADHD).
26. In March 2020, Mr Y was awarded Band B priority based on medical grounds. The Council says it decided to enhance this to Band A as Mr Y provided evidence of ten years continuous residency. It assessed him as needing a two-bedroom property on the first floor (maximum) because of Mrs Y’s mobility needs. It said, as B and C were both under ten years old, separate bedrooms were not needed.
27. In November 2020, Mr Y contacted a local Councillor as he disagreed with the Council’s refusal to award his family a three-bedroom need. Mr Y sent the Councillor medical evidence about his sons’ needs from 2017 and 2019.
28. The Council told the Councillor that it had considered the medical evidence in March 2020 and, as no new evidence had been provided, its decision remained unchanged. The Council recommended Mr Y complete a new medical assessment form if he had new medical evidence. It advised Mr Y to start bidding on properties and explained how as it had not received any bids from him.
29. In December, Mr Y contacted his local MP about the Council’s bedroom requirement decision. The Council sent the MP the information it had sent the Councillor. The Council offered to put in place an auto-bid system to maximise Mr Y’s chances of moving as it said Mr Y still had not made any bids.
30. In March 2021, Mr Y requested a review of the Council’s bedroom requirement decision. He provided the documents from 2017 and 2019 to support this.
31. At the end of March, the Council replied to Mr Y. It said it could not accept Mr Y’s appeal as it had been over 21 days since its original decision from March 2020. However, it explained it could consider any changes to his family members’ medical needs. It invited him to complete two medical assessment forms and return these with any new supporting evidence.
32. In April, Mr Y sent the Council a completed form and the supporting evidence originally provided in March 2020. This included:

• the multidisciplinary assessment for B, from 2017, involving paediatricians and speech and language therapists. This said B enjoyed his own company and would find joint play or social interactions difficult. B had significant sensory input difficulties, meaning he struggled with loud noises, which caused him to become very upset. B struggled with falling asleep and would wake up fairly regularly during the night; and
• the assessment of C, from December 2019, by a paediatrician at a child development centre. This said C had sensory and sleeping difficulties. More specifically, C struggled with change and preferred routine. He needed time by himself to calm down. He struggled with sudden noise, which caused him to cover his ears and become hyperactive. He had difficulties with sleep, would find excuses to go to sleep later and needed his mother to sleep near him.

33. The Council’s independent medical advisor said:

• there was a need for additional space on medical grounds and “Band B – major medical priority applies”; and
• separate rooms for B and C were not needed as both were under ten years old.

34. The same day, the Council wrote to Mr Y with its refusal decision. It told him he had a right to request a review of the decision. It said, if he requests a review, Mr Y should let the Council know if there had been any significant changes to B or C’s medical needs and provide relevant supporting evidence.
35. The Council sent a refusal decision to Mr Y’s Councillor who had contacted the Council on his behalf.
36. At the end of April, Mr Y contacted his local MP with his completed medical form and the evidence from 2017 and 2019.
37. At the beginning of May, the Council decided not to refer Mr Y’s forms to an independent medical advisor. This was because they had already been considered in April and no new evidence had been provided. The Council explained this to Mr Y’s MP.
38. On 9 May, Mr Y requested a review of the Council’s two-bedroom requirement decision. He said siblings with ASD can disturb each other’s sleep patterns. He said B and C need their own bedroom space to destress and accommodate their individual sensory and sleeping needs. He complained the Council had discriminated against him and his family by failing to accept B and C needed separate bedrooms.
39. On 7 June, the Council sent Mr Y its decision about his review. It said it upheld its decisions about Mr Y’s banding and bedroom need. It said the medical evidence provided by Mr Y was the same evidence considered in March 2020. The Council’s independent medical advisor had looked at this afresh in April 2021, but its position remained that separate bedrooms were not essential for B and C because of their age. The Council said this may change when B and C are older.
40. Mr Y replied asking the Council to reconsider its decision. He said the Council had failed to consider the evidence he had given them showing children with disabilities – regardless of age – needed their own separate bedrooms.
41. In mid-June, Mr Y complained to the Ombudsman.
42. At the end of June, the Council said unless there was a substantial change in B and C’s medical conditions, there was no need for Mr Y to complete further medical forms as his case had recently been reviewed by the Council’s independent medical advisor.
43. In September, Mr Y sent the Council a letter from B’s GP asking it to consider the effect of both sons sharing a room. The GP said this was causing behavioural issues with son B and bedwetting. Mr Y also sent a letter from B and C’s school.
44. In October, the Council replied to Mr Y:

• the Council said the GP letter only relayed information that Mr Y had told the GP. After considering this, and the letter from the school, the Council said its decision remained unchanged that Mr Y’s application did not meet the criteria for a three-bedroom property;
• it reminded Mr Y about bidding on properties; and,
• the Council suggested Mr Y consider looking for private rented three-bedroom properties.

45. In November, Mr Y sent the Council an educational psychologist report for C from May 2021. This noted both B and C prefer different environments at bedtime (B preferred the lights off, but C was afraid of the dark and needed light). The educational psychologist said a combination of the children’s conditions and insufficient living space meant B and C were not getting enough sleep. This then had an impact on their behaviour and ability to engage at school.
46. The Council replied to confirm it had reviewed all documents received, including the educational psychologist report. However, it said that a two-bedroom property would meet the needs of Mr Y’s family. It said it had awarded the family medical priority because a move to alternative accommodation would improve the impact the family’s current accommodation was having on B and C’s health and medical conditions.

Analysis – was there fault by the Council causing injustice?

Bedroom need assessment

47. Mr Y complains about the Council’s refusal to award him bedroom entitlement to bid on three-bedroom properties. He says the Council has failed to considered B and C’s need to have separate bedrooms to meet their disability-related needs (parts a and b of the complaint).
48. I have considered the independent medical advisers reports, both the original one from March 2020 and the one from April 2021. In both reports, the medical advisers said B and C did not need separate rooms because of their age. Both agreed, however, that the family needed additional space on medical grounds.
49. The medical advisers’ reports did not address the evidence provided by Mr Y, particularly the assessments from 2017 and 2019 and the detailed points made about B and C’s sensory and sleep difficulties contained in these. The reasons why the adviser has recommended additional space on medical grounds is also not clear. In the more recent report, from April 2021, the medical adviser has given advice on banding, which goes beyond the medical adviser’s role. These are points that I would expect to have been addressed in the Council’s decisions that were informed by these reports.
50. I have considered the Council’s key responses to Mr Y from March and November 2020, June 2021 and November 2021. Mr Y has specifically requested the Council consider his sons’ needs when making a decision about bedroom entitlement. The Council has focused on the age of B and C, like the medical advisers, when refusing his request. I find the Council has failed to explain how it has considered the evidence provided by Mr Y and weighed this against the advice from its independent medical advisers, including the more recent educational psychologist report Mr Y provided. Rather, the Council has, in my view, accepted the medical adviser’s advice as its own. This is fault.
51. Under the Council’s guidance to staff on assessing a household’s bedroom needs (see paragraphs 15 and 16 above), the Council says the medical advisor will discuss individual cases with other health professionals before deciding if exceptional circumstances exist for an extra bedroom. It says it may obtain advice from a medical advisor or occupational therapist. It seems to me there were exceptional circumstances in this case which would have met the criteria for the Council to seek further input from the professionals involved in B and C’s care, such as those provided in Mr Y’s evidence, or consider referring the case to its occupational therapy team. B has an EHC Plan, meaning the Council could have considered getting advice from its relevant team about B’s needs. I have seen no evidence that these options were considered and the housing officer has adopted the medical advisers’ recommendations. This is fault.
52. The fault identified has caused Mr Y distress and he has gone to significant time and trouble asking the Council to fully consider his evidence.

Alleged disability discrimination

53. In recent correspondence with the Council, Mr Y complained the Council discriminated against him and his family by failing to accept B and C needed separate bedrooms. He said he had given the Council evidence showing children with disabilities – regardless of age – needed their own separate bedrooms.
54. As explained above, we cannot decide if the Council has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not the Council has had due regard to an individual’s rights in its treatment of them.
55. In my view, the Council is not expected in all cases to award an extra bedroom entitlement to applicants when their two children have disabilities. Rather, the Council’s allocations policy provides a process that allows it to decide whether or not exceptional circumstances exist that mean an extra bedroom is needed. This includes situations, such as Mr Y’s, where the applicant requests an extra bedroom because of the medical or disability-related needs of two children who are under ten. Mr Y has been able to access this process and request a review of the Council’s refusal decision. I, therefore, do not find the Council failed to have due regard to its duties under the Equality Act here. This does not affect my findings of fault above.

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Agreed action

56. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Mr Y for the fault causing injustice;
2. review Mr Y’s request for a separate bedroom for B and C. The Council should ask Mr Y if he wishes to submit any new evidence about B and C’s needs or provide details of health care professionals he would like the Council to consider contacting. The Council should consider getting advice from its occupational therapist team and on B’s EHC Plan. The reviewing officer should also be given a copy of this decision statement and all the evidence already submitted by the family. It should inform Mr Y in writing of its decision, explain the reasons, and send us a copy of the letter; and,
3. make a payment to Mr Y of £150 to recognise the time and trouble Mr Y was put to, including raising a complaint through his local Councillor and MP.
57. Within three months of my final decision, the Council has also agreed to:

• circulate guidance to staff on the need to provide clear reasons to applicants on bedroom-entitlement decisions, which explains how it has weighed any conflicting evidence from health professionals involved with the applicant’s family and its own medical advisers. The Council should review any template letters to ensure there are clear directions on when it is necessary for staff to include such reasons; and
• share this decision with relevant staff.

58. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

59. I have completed my investigation.
60. I have decided to uphold parts a and b of Mr Y’s complaint. This is because there was fault by the Council causing injustice. The Council has agreed to the above recommendations, which are suitable ways for the Council to remedy this.

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Investigator's decision on behalf of the Ombudsman