Summary: The Council was at fault for the way it dealt with Mr X’s housing application. The Council delayed in referring Mr X to an Occupational Therapist, delayed in reviewing Mr X’s medical priority and request for an additional bedroom and was at fault for the way it reached its decision on Mr X’s medical priority. As a result, it took the Council much longer to provide Mr X with a decision on his housing application and he cannot be sure the Council came to the correct decision about his medical priority. To remedy the injustice caused the Council agreed to apologise, make a payment to Mr X and review how it carries out Medical Assessments.

The complaint

1. Mr X complains about the way the Council considered his application for re-housing, namely it refused his request for medical priority and an additional bedroom.

Back to top

What I have investigated

2. I have investigated events from May 2020 onwards. I have not looked back at events from 2019 as too much time has elapsed since, and I am satisfied Mr X could have complained about these sooner.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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)
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)

Back to top

How I considered this complaint

8. As part of this investigation I considered the information provided by Mr X. I discussed the complaint with Mr X over the telephone. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mr X and the Council.

Back to top

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. 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))

Decisions and reviews

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. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
14. Statutory guidance on the allocation of accommodation says:
• review procedures should be clear and fair with timescales for each stage of the process
• there should be a timescale for requesting a review. 21 days is suggested as reasonable;
• the review should be carried out by an officer senior to the original decision maker, or by a panel not including the original decision maker;
• reviews should normally be completed within a set deadline. 8 weeks is suggested as reasonable.
15. The Council’s Housing Allocation Policy (Allocations Policy) does not specify a timeframe for how long it will take the Council to complete a review. However, the Council’s decision letters specify the Council will aim to complete a review within 21 working days of receiving the request.

Medical assessments

16. 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.
17. 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 Access and Allocation Manager about whether or not the applicant should have a medical priority due to their health or disability. The Council’s Medical Adviser is asked to consider whether to recommend priority for housing. If priority is not agreed, the Medical Adviser will say why not.
18. The Allocations Policy says if an applicant is disabled and has mobility needs relating to their housing the Council will refer them to the Occupational Therapist. The Occupational Therapist will assess whether the disabled person can remain in their home with adaptations or needs alternative housing.

Homelessness

19. A person who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation. (Housing Act 1996, section 175 & Homelessness Code of Guidance for Local Authorities 6.4)
20. There is no simple test as to whether accommodation is reasonable to occupy. It is for the housing authority to make a judgement on the facts of each case, taking into account the circumstances of the applicant. However it would not be reasonable for an applicant to continue to occupy accommodation if the physical characteristics of the accommodation were unsuitable for the applicant because, for example, they are a wheelchair user and access was limited. (Homelessness Code of Guidance for Local Authorities 6.39)

What happened

21. Mr X suffers with arthritic psoriasis, erythroderma, cellulitis, eating disorders and post-traumatic stress disorder.
22. Mr X lived in private rented accommodation. This was a three storey Victorian house. He was registered on the Council’s allocations scheme and in Band C category. Those in Band C do not have any priority.
23. In May 2020 Mr X submitted a medical assessment form to the Council. Mr X said he needed night and day time carers. He explained the property was in a poor condition and his landlord could not carry out adaptations. Mr X said he uses a wheelchair and walking aids and the property is not wheelchair friendly. Mr X said he cannot access bathing facilities without assistance.
24. In June 2020 the Council decided Mr X did not qualify for rehousing on medical grounds after referring his application to its Medical Adviser. The Medical Adviser said Mr X does not have a medical condition which would preclude the use of stairs but would be happy to review this following an Occupational Therapist (OT) report.
25. On 16 June 2020 Mr X asked the Council to review its decision. Mr X sent the Council further evidence which included letters from his doctor and consultant. Some of these mentioned Mr X suffered joint pains but there was no mention of overnight care.
26. The Council referred Mr X’s application to its Medical Adviser. On 14 July 2020 the Council sent Mr X its decision. The decision letter only contained the Medical Adviser’s comments which said, “This accommodation is self-contained and has all normal facilities…I recommend all repairs be completed as soon as practicable. Medical priority does not apply.”
27. In September 2020 Mr X and the Council exchanged emails about his case. The Council said the evidence he provided did not support the need for a sleep in carer. The Council said the OT would contact Mr X to assess his housing needs and if it is clear he needs a two bedroom property, the Council would review this.
28. On 17 September 2020 Mr X made a formal complaint. Mr X said he needed a two bedroom property and is still waiting for an OT assessment.
29. The Council responded to Mr X on 14 October 2020. The Council said it referred Mr X to OT following the Medical Adviser’s recommendation in July 2020. The Medical Adviser found Mr X did not qualify for medical priority for re-housing, and repairs needed carried out to the property. OT will contact Mr X and if they find he needs an extra bedroom, the Allocation Review Panel will consider his case.
30. Mr X responded to the Council and said it has mixed up his complaint as he was arguing for an additional bedroom as he needs overnight care. Mr X said his complaint was not about repair issues.
31. On 5 and 19 November 2020 the OT carried out virtual assessments of Mr X at his home. On 24 November 2020 the OT provided the Council with its report. The OT found Mr X’s property was not wheelchair accessible on the ground floor for access to bathing and showering facilities and Mr X could not access the basement kitchen as there are steps down to this. The OT also noted the London Fire Brigade had recently installed fire alarms and commented the property was not suitable for a wheelchair user. The OT recommended:
• The property is unsuitable because of Mr X’s disability, and it could not be adapted. Mr X has a medical condition which is affected by the design of the property.
• Mr X is rehoused to a level access property that enables wheelchair access to all areas and has a level access shower.
• Mr X is housed in a property with an adapted kitchen.
• Mr X will need to provide medical evidence to support a request for an additional bedroom.
32. On 25 November 2020 the Council provided Mr X with a holding response to his complaint. The Council said it was discussing his case with the OT and asked Mr X to submit any evidence he has to say he needs overnight care. The Council said it would send the OT report and any other evidence Mr X provides to its Medical Adviser to consider. The complaint response referred Mr X to the Housing Ombudsman.
33. In December 2020, the Allocation team along with the OT, reviewed Mr X’s application and agreed to include him on the OT list for a one bedroom adapted property.
34. On 1 February 2021 Mr X emailed the Council with photos of his skin condition and a hospital discharge summary from December 2020. Mr X told the Council he must apply ointments onto his skin and needed assistance with this. Mr X also asked the Council to refer him for a social care assessment.
35. On 19 February 2021 the Council wrote to Mr X and said he did not qualify for medical priority. The decision letter contained the Medical Adviser’s comments and said the Council took these comments into account. The Medical Adviser’s comments were, “I note the further representations and confirmation of the applicant’s skin condition and other medical issues. The applicant already resides in a self-contained house with all normal facilities. I recommend any disrepair be repaired as soon as practicable. The applicant’s care needs can be reasonably met by visiting carers and services in the usual way.” The decision letter told Mr X he would remain in Band C on the Council’s housing register.
36. Mr X asked for a review of this decision on 25 February 2021. Mr X said his medical referral had nothing to do with disrepair and the amenities in this property are not accessible such as the shower and bath. Mr X also said the OT and London Fire Brigade said the property was unsuitable as he could not access parts in his wheelchair. Mr X said he could not access the kitchen due to steps. Mr X said he needs daytime and night time care and asked for an additional bedroom.
37. In May 2021 Mr X contacted the Council as he had not received a response to his review or a social care assessment.
38. On 8 June 2021 the Council carried out a social care assessment of Mr X. This recommended urgent re-housing and a referral to reablement care to provide support once Mr X moved to a suitable property.
39. On 22 June 2021 the Council notified Mr X of its review decision on his housing application. The Council only provided Mr X with the Medical Adviser’s comments. The Medical Adviser said, “I note the applicant’s request for an additional bedroom; however the applicant’s care needs can be reasonably met in the usual way by visiting carers and care services. An extra bedroom is not, medically necessary in this case.”
40. Following the conclusion of Mr X’s review the Council provided Mr X with a stage two complaint response on 8 July 2021:
• The Council apologised for the delay in submitting Mr X’s medical evidence to its Medical Adviser. The Council said it received the evidence in February 2021 but submitted it to its Medical Adviser in June 2021.
• Following the OT’s report, the Council sought to offer Mr X a one bedroom property.
• The Council said its Medical Adviser considered the additional evidence Mr X provided in February 2021 but decided Mr X did not need an extra bedroom.
• The Council has identified a property for Mr X and will contact him to arrange a viewing.
• The Council said it will consider Mr X’s request for an additional bedroom through its Allocations Review Panel.
41. The Council offered Mr X a property in July 2021. This was a one bedroom ground floor property. Mr X moved in, in October 2021 following adaptations to the property.
42. In August 2021 the Allocation Review Panel considered Mr X’s request for an additional bedroom. The Panel listed the medical evidence it looked at and decided there was no supporting evidence to suggest Mr X needed an additional bedroom.
43. Mr X remained dissatisfied and complained to the Ombudsman. Mr X said the Council’s Medical Adviser has never assessed Mr X or his carers and said his medical priority and accommodation were fine.

Analysis

44. The Council’s Allocations Policy says the Council will refer someone to the OT if they are disabled and have mobility needs relating to their accommodation. While the Council did refer Mr X to its OT, he was not assessed until November 2020. Mr X’s medical assessment form, in May 2020, stated he had mobility needs, used a wheelchair, and had difficulty accessing bathing facilities. The Council should have referred Mr X to its OT sooner, when he raised these issues in his medical assessment form. This is fault.
45. There is also fault in the way the Council reached its decision not to award Mr X medical priority based on advice from its Medical Advisor. The Council confirmed it contracts out its medical assessments to a Medical Adviser. It is for the Council to decide on medical priority and not the Medical Advisor. The Council is entitled to take account of the Medical Advisor’s opinion but must also take account of other medical evidence it receives.
46. In reaching its decision the Council should consider the fact that its Medical Advisor has not examined or spoken to Mr X. Furthermore, the Medical Advisor’s advice did not address the issues raised in the OT report. After the OT report was completed, the Council said it passed this to its Medical Adviser to consider. The Medical Adviser provided the Council with their opinion in February 2021 and the Council accepted this. There is no mention in the Medical Adviser’s opinion about the issues raised in the OT report, namely that the OT recommended Mr X is rehoused as he cannot access kitchen facilities due to the stairs. In addition he cannot access bathing facilities which were essential for his skin condition. As the OT report held a different view from that of the Medical Adviser the Council should have explained in the decision letter why it preferred the Medical Advisor’s view and set out reasons for this. Instead the Council has just set out the Medical Adviser’s view in its decision letters.
47. The Council was at fault for delaying in passing Mr X’s evidence to its Medical Adviser for his review in February 2021. It did not do this until June 2021, a delay of four months. While I recognise the Council apologised for the delay, and this is welcomed, Mr X had to wait four months longer for his review decision.
48. Mr X also complains the Council decided not to award him an additional bedroom. The Council has now considered this request through its Allocations Review Panel. The Panel decided not to award an additional bedroom as it did not consider Mr X needed this. The Panel considered the medical evidence Mr X provided along with the OT report. I have not found the Council at fault for this decision. The OT did not say Mr X required an additional bedroom but that he would need to provide further evidence to the Council that he needs overnight care. The Panel in its decision listed the medical evidence it considered but did not find this supported Mr X’s request for an additional bedroom.
49. Following the OT assessment and report, the Council could have considered whether to assist Mr X to move to alternative accommodation through the homelessness process. As the Council was aware Mr X was living at a property which was not suitable for wheelchair users and he could not access bathing and kitchen facilities, it could have assessed whether he was homeless based on the fact his property was not reasonable to occupy.
50. While I cannot say whether the Council would have decided Mr X was homeless on the basis his property was unreasonable to occupy, there is a chance it would have. Had the Council decided Mr X was homeless, it could have looked at what other duties and support it could have provided him to find alternative accommodation.
51. As I have found the Council at fault, I need to consider whether this caused Mr X injustice. Mr X has suffered distress and time and trouble for the time it took the Council to refer him to the OT and for the time it took the Council to complete its review. Further, had the Council referred Mr X to the OT sooner he may have been placed on the adapted properties list sooner.
52. In addition, Mr X could not have been sure the Council decided correctly whether he should have received medical priority. In situations like this, where we have found fault with how the Council came to a decision, we would normally ask the Council to remake the decision properly. However, this is not necessary as Mr X has now been re-housed in an adapted property.

Complaint handling

53. Mr X complained to the Council in September 2020. In November 2020 the Council sent Mr X a holding response as it wanted to discuss his case with the OT and send any new evidence he has to the Medical Adviser. This complaint response also told Mr X he could take this matter further by complaining to the Housing Ombudsman Service. This is fault.
54. The Housing Ombudsman Service was not the correct ombudsman to signpost Mr X to. It is not for complainants to know which ombudsman scheme is the correct one for their complaint. The Council’s failure to provide accurate information means Mr X may have contacted us sooner. This is an injustice to Mr X.

Back to top

Agreed action

55. Within one month of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Apologise to Mr X for the above faults identified.
• Pay Mr X £250 to recognise the distress, time and trouble for delaying in carrying out his review and referral to the OT.
56. Within two months of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Review its policy regarding Medical Assessments to ensure the Council, not the Medical Adviser, is making the decisions whether to award medical priority.
• Remind staff to ensure all decision letters provided to applicants concerning medical priority explain the reasons why the decision has been made.
• Provide guidance to staff to ensure they know which Ombudsman to signpost complainants to.

Back to top

Final decision

57. I have completed my investigation and found there was fault by the Council which caused injustice to Mr X. The Council has agreed to the above actions to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman