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London Borough of Tower Hamlets (21 006 705)

Category : Housing > Allocations

Decision : Upheld

Decision date : 10 Apr 2022

The Ombudsman's final decision:

Summary: Ms C complained the Council failed to rehouse her despite her urgent need to move, misunderstood the occupational therapy recommendation, failed to consider her medical evidence, denied offering her a property when it had done so, delayed considering her complaint, failed to properly address the complaint and wrongly amended her bidding date. There was some miscommunication about the occupational therapy recommendation but that did not affect Ms C securing a property and there were issues not addressed in the complaint response. There is no evidence of fault in the rest of the complaint. An apology and payment to Ms C is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Ms C, complained about the way the Council dealt with her housing register application. Ms C complained the Council:
    • wrongly rejected her application in January 2018;
    • delayed referring her case to an occupational therapist in January 2019;
    • failed to rehouse her despite her urgent need to move;
    • misunderstood the occupational therapy recommendation;
    • failed to consider her medical evidence when awarding her priority;
    • unreasonably denied offering her property when it had done so;
    • delayed considering her request for a review of her complaint;
    • failed to address all the matters she raised in her complaint; and
    • wrongly amended her bidding date.
  2. Ms C says fault by the Council has caused her distress and led to her missing out on an offer of a suitable property.

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What I have investigated

  1. I have investigated the period from July 2019 onwards. The final section of this statement contains my reason for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. 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)
  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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Ms C disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and 34(3))
  3. 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

  1. As part of the investigation, I have:
    • considered the complaint and Ms C's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Ms C 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

What should have happened

  1. The Council’s Allocations Scheme (the scheme) provides for three priority bands. The highest band is band 1A which is for emergencies, those with medical needs, priority decants and under occupiers.
  2. Under Choice Based Lettings under the scheme, applicants can bid for homes advertised. The highest priority eligible bidder for any one home is usually offered it first and then the next and so on until the home is accepted. Letting homes in this way means that applicants are considered for homes they express an interest in. It therefore gives choice to applicants over property location and type.
  3. The scheme says when more than one applicant in the same band bids for a home it will usually be offered to the applicant with the earliest preference date in the band.

What happened

  1. Ms C is living in a two-bedroom flat on the first floor with her husband and three children. Ms C lives in a community association property. The community association is one of the partners in the homeseekers scheme which operates a common housing register for all social housing providers in Tower Hamlets. Ms C is a community association tenant and all her dealings regarding her housing application were with the community association. However, the Council is ultimately responsible for allocations in its area and therefore the community association is acting on its behalf in this respect. So, in this statement I will refer to the actions of the community association as if they were actions of the Council.
  2. Until 2019 Ms C was registered for rehousing on the Council’s housing register in band 2A based on overcrowding. Ms C was eligible to bid for three-bedroom properties.
  3. In 2018 Ms C applied for additional priority on medical grounds. That was refused. Ms C appealed and an occupational therapist carried out an assessment in July 2019. The occupational therapist concluded Ms C met the threshold for medical priority. The occupational therapist recommended a four-bedroom property at ground floor level as there were issues with Ms C’s son living at height, along with a separate kitchen. In the meantime window restrictors were ordered for the windows of the property, a digital key safe was recommended and it was recommended the landlord explore whether the kitchen could be sectioned off from the lounge with a wall. The landlord wrote to Ms C to tell her about the assessment.
  4. Ms C was interested in a property on a new development at Island Point. The Council had told Ms C it would reserve a three-bedroom property for her. However, once the occupational therapist completed her assessment Ms C needed a four-bedroom property. The Council told Ms C there were fewer four-bedroom properties available on the development and there were 17 applicants in the same priority band who had been registered for longer than Ms C. The Council told Ms C it would make every effort to make her an offer of accommodation and that if she were successful it would contact her in October.
  5. An officer telephoned Ms C about the Island Point development in September. Ms C says the officer offered her the property on the development and gave her a viewing date. The Council disputes that and says officers telephoned hundreds of potential applicants in September 2019 to see whether they still wanted to pursue housing at Island Point.
  6. Ms C chased the Council about the Island Point property in October. The Council told Ms C the telephone call in September had been to confirm people still wanted to be considered for properties on the development rather than being an offer of a property. The Council told Ms C the development included one four-bedroom ground floor property which Ms C could view but the Council could not make any guarantees of an offer.
  7. Ms C contacted the Council again in November about the property she believed she had been offered. When the Council responded it apologised for any misunderstanding and reiterated the September telephone call had been to reregister her interest. The Council explained it had to offered the four bedroom property to someone who had been in band 1A for longer than Ms C.
  8. Following a telephone discussion in December the Council emailed Ms C in January 2020 to say it could not offer her a property above the ground floor unless the occupational therapist made that recommendation.
  9. Ms C challenged the Council’s interpretation of the occupational therapy report in relation to the alleged need for outdoor space in January 2020. Ms C told the Council the occupational therapist had not said a garden was necessary. Ms C put in a complaint and in February 2020 asked for the complaint to be considered by the review panel. In March 2020 the Council told Ms C there would be a delay responding to the complaint due to Covid 19 as the Council was focusing on emergency services until further notice.
  10. A complaint review panel took place in August 2020.
  11. In September 2020 the occupational therapy team confirmed Ms C could move to a property with internal stairs.
  12. Ms C complained to the Housing Ombudsman. During that process the landlord offered Ms C £100 to acknowledge the fact it had not properly understood or explained the occupational therapy report and could have been clearer with Ms C about the prospects of her being rehoused. The landlord did not agree Ms C had missed an opportunity to be rehoused.
  13. The Council says as of January 2022 there were 1,448 applicants on the housing register in need four-bedroom accommodation. Of those 178 applicants are in band 1A, which includes Ms C. The Council says it has had only 67 four-bedroom homes available to let between April and December 2021. The Council says as a result it is likely to be many years before even high priority cases receive an offer of accommodation. The Council says Ms C’s bid positions for four-bedroom properties were between 18 and 41 for her bids on homes advertised between August and November 2021. The Council says this shows the number of other high priority cases ahead of Ms C which is why she has not been offered a four-bedroom home yet.

Analysis

  1. I have exercised the Ombudsman’s discretion to investigate the period from July 2019 onwards. That is because this is the date when the occupational therapist completed her assessment of Ms C’s son and Ms C has remained in contact with the community association since then and the issues she is concerned about are ongoing.
  2. Ms C says the Council failed to rehouse her despite her urgent need to move. The evidence I have seen satisfies me the Council placed Ms C in the highest category on its allocations policy. This means Ms C receives priority above other applicants on the Council’s housing register. However, it is also clear there are a significant number of applicants in the highest priority category. At the point at which the Council responded to my enquiry on this complaint there were 178 applicants in the same band as Ms C. The Council says it has only had 67 four-bedroom homes to let between April and December 2021. So, while I understand Ms C’s frustration about having to wait for a property, I am satisfied the delay is not due to fault by the Council. Rather, the delay is due to the lack of suitable four-bedroom ground floor properties. As I have found no evidence of fault by the Council I have no grounds to criticise it.
  3. Ms C says the Council misunderstood the occupational therapy recommendation relating to ground floor accommodation. Ms C says the occupational therapist did not mean to prevent Ms C bidding on properties with internal stairs. Ms C says this means she has missed out on suitable accommodation. Having considered the occupational therapy report I note it states Ms C requires ground floor on all accounts. There is no reference in the occupational therapy report to houses with internal stairs being suitable. I therefore cannot criticise the Council for telling Ms C initially that her assessment was for ground floor accommodation as that reflects the occupational therapist’s recommendation. However, I am satisfied the Council subsequently clarified that with the occupational therapist who advised that properties with internal stairs posed no health risks to the family. I am therefore satisfied Ms C is now able to bid on properties with internal stairs. Given the original wording of the occupational therapist’s recommendation I cannot criticise the Council for the initial advice given to Ms C. Nor do I consider it likely Ms C missed out on an offer of suitable accommodation given she has been bidding for four-bedroom properties, including those with internal stairs, since September 2020 and has never come close to being in first place for an offer.
  4. Ms C says the Council also misunderstood the occupational therapy recommendation on the need for outdoor space. Ms C says the occupational therapist did not say she needed outdoor space and therefore the Council should not have told her she could not bid on properties without a garden. Ms C says the Council also disregarded her application for properties on Island Point due to the properties not having outside space.
  5. The Council accepts Ms C was wrongly told she could not bid on a property without outdoor space. That is fault and the landlord has offered Ms C an apology and £100. I consider that a satisfactory outcome for this part of the complaint given I have seen no evidence to suggest the misunderstanding about the requirement for a garden prevented Ms C securing a property. I say that particularly as I note although Ms C has continued to bid on four-bedroom properties she has never secured a bid position (other than for the Island Point property) above eighteenth. I therefore consider it unlikely, on the balance of probability, Ms C has missed out on a property due to a misunderstanding about what the occupational therapist recommended.
  6. In reaching that view I recognise Ms C says there were other four-bedroom properties on Island Point that she could have secured if the Council had recognised she did not need outdoor space. However, other than the ground floor four-bedroom property allocated to someone else there were no other four-bedroom properties on Island Point which were at ground floor level. As I said earlier, at the point at which the Council was considering applicants for Island Point the occupational therapy recommendation was for a ground floor four-bedroom property. As the occupational therapist did not say houses with internal stairs were appropriate for Ms C until 2020 I do not consider it likely Ms C missed out on a property at Island Point due to the misunderstanding about the need for outdoor space.
  7. Ms C says the Council failed to properly consider her medical evidence in awarding her priority. Ms C says she and her son have asthma and the property she lives in is affected by pollution and dust. Having considered the occupational therapy report I note the occupational therapist said the issue with dust from neighbouring developments was not a matter she could consider. In any event, the highest banding Ms C can achieve as a result of medical priority is band 1A. Following the occupational therapy assessment Ms C is already in that band. There is therefore no opportunity for Ms C to achieve a higher band based on medical priority. I therefore have no grounds to criticise the Council.
  8. Ms C says the Council wrongly said it had not offered her a property in September 2019 when it had. Ms C is referring here to the properties on Island Point. Ms C says she registered her interest in those properties in June 2019 and was told if she was successful in securing a property the Council would contact her in October 2019. Ms C says because there is evidence an officer contacted her in September 2019 this is sufficient to show the Council offered her a four-bedroom property at Island Point. There are no records from the telephone conversation Ms C is referring to. The Council says it telephoned hundreds of applicants during September 2019 to discuss whether they still wanted to pursue a property on Island Point and that is the telephone call Ms C is referring to. Failure to keep a note of the telephone call is fault. I appreciate at the time the Council was contacting many applicants. In those circumstances I understand why it would not be possible to put a note on each individual’s file. Nevertheless, the Council should have kept a note of who had been contacted and the reason for that contact and failure to do that is fault. Given there is no record of the telephone call I cannot reach a safe conclusion about what information Ms C was given during that call.
  9. Ms C has also made the point that she was told she was in second position for the Island Point property. Ms C therefore says because there was more than one four-bedroom property available at Island Point she should have received an offer for one of the other properties. The documentary records show Ms C was in second position for the Island Point property. However, the documentary evidence is also clear that there was only one ground floor four-bedroom property available on Island Point and this was allocated to somebody with greater priority than Ms C in terms of the amount of time they had been in band 1A. I cannot criticise the Council for not offering Ms C a four-bedroom property that was not confined to the ground floor given the occupational therapist recommendation as that was not changed until September 2020.
  10. I understand Ms C’s frustration given she is living in unsuitable accommodation and was in second position for the Island Point property. I understand why Ms C would have believed this meant she would likely be offered the next four-bedroom ground floor property that became available. However, as the Council has pointed out to Ms C, when bidding on the Council’s homeseekers website Ms C is competing with many more applicants and as of 20 January 2022 there were 178 applicants in band 1A. Given the Council has fewer four-bedroom properties available it will necessarily be some time before Ms C can be rehoused. That is due to the lack of available properties though, rather than due to any fault by the Council.
  11. Ms C is concerned about how the Council handled the review of her complaint. Ms C’s review complaint was referred to a complaints panel for consideration. Ms C is concerned both about delay setting up the review panel and panel’s failure to consider all her points of complaint.
  12. In terms of delay, I note Ms C asked for a review panel in February 2020. The review panel took place in August 2020. That is a considerable delay. However, I am satisfied exceptional circumstances existed at the time due to the onset of Covid 19 and Government restrictions. The Council was clear in its communications with Ms C in March 2020 that as a result of Covid 19 it was diverting its resources to deal with emergencies and therefore there would be a delay setting up the complaint process. I appreciate from Ms C’s point of view there was no reason a zoom call could not have taken place earlier. However, the point is that Council staff were being moved from work such as complaints to dealing with frontline services at the time. In those circumstances I do not consider the delay warrants a finding of fault.
  13. I am, however, concerned that when responding to the review request the Council failed to consider all the points Ms C made in her request for a review in February 2020. Failure to consider all the points she raised is fault. I consider an apology a satisfactory outcome for that given the Ombudsman has now investigated the issues.
  14. Ms C questions why the Council has backdated her bidding date from 22 July 2019 to 4 June 2019. Ms C says as the occupational therapist did not recommend a four-bedroom property until 22 July 2019 her bidding date should not have been backdated. I am confused by Ms C’s approach here. Ms C is in a better position on the housing register as a result of having her bidding date backdated. Ms C has therefore not suffered an injustice as a result. In any event, I am satisfied the Council backdated the bidding date to 4 June 2019 to reflect the date it referred Ms C’s case to the occupational therapist. I do not consider that fault and as the Council has improved Ms C’s position on the housing register by its actions I do not consider she has suffered an injustice as a result.

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Agreed action

  1. In addition to the remedy Ms C’s landlord has already offered, as referred to in paragraph 23, within one month of my decision the Council will apologise to Ms C for failing to properly consider the complaint she put forward for review in 2020 and for not keeping a note of the telephone conversation in September 2019.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint. I am satisfied the action the Council will take is sufficient to remedy Miss C’s injustice.

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Parts of the complaint that I did not investigate

  1. I am not investigating Ms C’s concerns about the Council rejecting her application in 2018 or any delay referring her case to an occupational therapist in January 2019. That is because those matters occurred more than 12 months before Ms C contacted the Ombudsman. If Ms C had concerns about those matters she could have made a complaint to the Ombudsman at the time and did not do so. I see no reason to exercise the Ombudsman’s discretion now.

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Investigator's decision on behalf of the Ombudsman

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