Summary: Ms X complains that the Council failed to fully consider her daughter, Ms D, and grandson’s medical conditions when handling her daughter’s housing register application. The Ombudsman upholds Ms X’s complaint. To remedy the uncertainty and stress this caused Ms D, the Council has agreed to apologise and make Ms D a payment.

The complaint

1. The complainant, who I shall refer to here as Ms X, complains on behalf of her daughter, Ms D, about the Council’s handling of Ms D’s housing register application. She complains the Council failed to take into consideration:
1. her daughter’s mental health difficulties;
2. her grandson, M’s lifelong medical condition; and,
3. the proof that Ms D had been resident in the Council’s authority area for the last ten years.
2. Ms X says she and her daughter have been put to time and trouble trying to progress the application for enhanced banding based on residency. Ms X says this has affected Ms D’s existing mental health conditions of anxiety and depression.

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What I have investigated

3. I have investigated matters from September 2020 onwards. Matters, which I have decided not to investigate due to the amount of time that has passed, are set out in the last paragraph of this statement.

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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. 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 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

7. I spoke with Ms X about her daughter’s complaint. I considered all the information Ms X and the Council sent me.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered all comments 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. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
10. An allocations schemes 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))

11. The council must write to the applicant with its decision, setting out its reasons and explaining their right to request a review of the decision.

The Council’s housing allocation scheme (July 2021)

12. 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:

• Band A is the highest priority band and is only awarded to households with an emergency and very severe housing need.
• Band B is the second highest band and is awarded to households with an urgent need to move.
• Band C is the third highest band and is awarded to households with an identified need to move.
• Band D is awarded to homelessness applicants who do not satisfy the ten-year continuous residence requirement.

13. Under the Council’s scheme, it may award an applicant additional priority, which will determine priorities between applicants in the reasonable preference 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.
15. The Council may also award additional priority to working households who are in housing need, but are on a low income. This applies to households where at least one adult household member is in employment and works for a minimum of 24 hours per week. An applicant awarded Band B priority will be moved up to Band A if they meet the working household requirements.

Reasonable adjustments

16. Under the Equality Act 2010, councils are under a duty to make reasonable adjustments for disabled people. The reasonable adjustment duty aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
17. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
18. 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.

What happened

19. In September 2020, Ms D was staying with her brother at his two-bedroom flat. Ms D was staying there with her young son who is disabled and has a lifelong condition. Ms D and her son were sleeping in her brother’s living room as the bedrooms were occupied by Ms D’s brother and his children.
20. In mid-September, the Council awarded Ms D Band B priority with a two-bedroom requirement and a priority date of January 2020. The Council awarded Band B because it had assessed Ms D as living in overcrowded housing.
21. In February 2021, Ms X called the Council on behalf of Ms D. She asked a Council officer how long it would take for Ms D to be housed. The Council officer said it was not possible to give an exact time frame, but said Ms D should continue bidding on properties.
22. At the beginning of March, Ms D called the Council to ask about the bidding process. A Council officer explained this to Ms D.
23. Ms X called the Council about her daughter’s living situation. The Council said that, if Ms D was at risk of being homeless, then she needed to complete a homelessness application.
24. At the end of April, the Council received an email from Ms D’s brother saying he had asked Ms D to leave his property by 7 May.
25. In early May, Ms D made a homelessness application to the Council through its online portal.
26. The Council asked Ms D to send certain documents to support her application within the next seven days or it would close her application.
27. Later in May, the Council closed Ms D’s homelessness application as it had not received the documents it needed to progress her application.
28. In mid-June, Ms D complained to the Council. Ms D said she had asked her brother to let her stay with him a few more weeks.
29. A few days later, the Council replied to Ms D’s complaint. It said:

• the Council had awarded Ms D with Band B priority because she was sleeping in the living room with her son.
• the Council still needed proof from Ms D that she had continuously lived in the Council area for the last ten years before it could award additional priority. It said it required proof of residency from 2015 to June 2021.
• it said Ms D should let the Council know if she was working 24 hours per week or more and had a permanent employment contract. This was because it could also consider awarding additional priority in these circumstances.
• the Council had closed Ms D’s homelessness application from May 2021 as it had not received the documents it had requested. However, the Council asked Ms D to let it know if she would like to pursue her application and it would reopen her application. It said Ms D should proceed with the application if she was not able to stay with friends or family.

30. In early July, Ms D asked for her complaint to be escalated. She said:

• the Council had failed to respond to her complaint the unsanitary, overcrowded living conditions were affecting her son’s health and making Ms D’s anxiety and depression worse;
• she had already provided proof of residence; and,
• she was employed on a part-time basis working 18 hours per week as she also needed to provide care for her son.

31. A few days later, the Council sent Ms D its complaint response.
32. In August, Ms D sent the Council further documents to confirm residency.
33. The next day, a Council officer told Ms D the documents had been accepted as proof of residency for certain time periods. The Officer provided a breakdown of the time periods for which it still needed proof.
34. In September, the Council wrote to Ms D. It confirmed Ms D had provided sufficient proof of residency between November 2014 to April 2019. However, it asked Ms D to send proof of residency for April 2019 to August 2019, October 2019 to April 2020 and April 2021 to date.
35. In mid-September, Ms D told the Council she had moved in with Ms X. She provided further documents to prove her residency.
36. In October, Ms X complained to the Ombudsman on behalf of Ms D.
37. In November, a Council officer wrote to Ms D to say she was reviewing all documents provided to prove her ten years continuous residency.
38. At the beginning of December, the Council officer told Ms D that the Council now had sufficient proof of Ms D’s ten years continuous residency. The officer explained that she would reassess Ms D’s application once Ms D sent her a change of circumstances form.
39. The next day, Ms D sent the Council a completed a change of circumstances form. Ms D said that she and her son lived with Ms X at her home, which was a four-bedroom property. She said that she and her son needed to move for medical or welfare reasons and that they were at risk of losing their home. This was because Ms X had accepted an offer to sell her house and was in the process of buying a property to move to.
40. In mid-December, the Council wrote to Ms D. It said:

• it had decided Ms D no longer had an identified housing need. The Council had decided to close her application. This was because Ms D was adequately housed at Ms X’s home.
• if Ms D felt that Ms X’s accommodation was having a detrimental impact on her physical or mental health, she should complete a medical assessment form and submit this with all supporting evidence.
• as Ms D did not have a housing need under its housing allocations scheme, it advised Ms D to consider looking for accommodation in the private rental sector.
• Ms D could contact the Council’s homelessness prevention team for further advice if she was at risk of losing her home.

41. Ms X requested a review of the Council’s decision on behalf of Ms D. She disagreed with the Council’s decision to take in account the number of bedrooms in Ms X’s property. Ms X said she had asked Ms D to move back in with her brother so the Council should assist Ms D with housing.
42. In early March, the Council sent Ms X and Ms D its review decision. It upheld its original decision. It said this was because it had assessed Ms D as requiring two bedrooms and there were two bedrooms in the property that could be used by Ms D and her son meaning she was adequately housed.

Analysis – was there fault by the Council causing injustice?

The Council’s consideration of Ms D and her son’s medical conditions

43. Ms X complains the Council failed to fully consider Ms D’s mental health difficulties and her grandson, M’s lifelong medical condition when handling Ms D’s housing register application.
44. In mid-June 2021, Ms D complained to the Council. Ms D said:

• she had anxiety and depression, which her living situation was significantly affecting. She was struggling to cope with having to sleep on her brother’s sofa and the situation had caused a strain on their relationship. She included a letter from her brother from April 2021 stating he was no longer able to support his sister living at his property.
• she was finding it difficult to provide her son with a safe and sterile environment to manage his condition. Ms D said she was living in unsatisfactory conditions due to the severe mould and damp in the property. Ms D said she was concerned about the impact this could have on her son’s condition. Ms D provided photographs of the damp and mould issues.

45. Based on the evidence I have seen, the Council failed to respond to both parts of Ms D’s complaint. This is fault.
46. Based on the Council’s housing allocations scheme, it is my understanding:

• an applicant may be awarded medical priority if the applicant’s current accommodation affects the health or disability of a household member. The Council will assess whether the applicant’s health or a member of their household’s health would improve by moving to alternative accommodation. An applicant may be awarded Band A, B or C (with Band A being awarded if the Council decides emergency re-housing is essential); and
• an applicant may be awarded insanitary or unsatisfactory housing priority. An applicant may be awarded Band A, B or C (with Band A being awarded if the applicant or a member of the applicant’s household has a life threatening condition that is seriously affected by their housing). The condition of the accommodation will be checked by an officer in its Private Sector Housing Environmental Health team and this priority may be awarded to accommodation that has severe damp.

47. Given Ms D’s complaint and, as it had been almost a year since the Council last considered Ms D’s medical priority, I would have expected the Council to have asked Ms D to complete a medical assessment form and re-assess whether medical priority should be awarded. Given Ms D complained about damp and mould in the property, I would have expected the Council to also have made a decision about whether or not insanitary or unsatisfactory housing priority could be awarded. I have seen no evidence the Council did this, which is fault (parts a and b of the complaint). This caused Ms D stress and uncertainty. She missed out on the Council making a clear decision on whether she could be awarded either priority.
48. In September 2021, Ms D moved in with Ms X.
49. However, Ms X told me that Ms D moved back in with her brother in January 2022. In these circumstances, the Council should now make a decision on whether Ms D should be awarded medical priority or unsatisfactory housing priority. The Council should consider the factors and evidence raised by Ms D in her complaint to the Council. If the Council awards Ms D with either priority, it should consider whether it should backdate the priority date to the point Ms D originally these submitted issues.

The Council’s decision on continuous residency

50. In September 2020, the Council awarded Ms D Band B with a two-bedroom requirement. It told Ms D that she may qualify for additional priority if she provided proof of residency between August 2015 and July 2019. The Council told Ms D that if she disagreed this decision, she could request a review.
51. It is my understanding Ms D did not request a review. I do not find the Council at fault here. The Council explained it did not have sufficient evidence to show Ms D had continuously lived in the area for ten years. It provided Ms D with information on what she could do if she disagreed with this decision and the time periods for which it still required proof of residency.
52. Following the Council’s decision in September, Ms D began bidding on properties and continued to do so throughout the time period considered. However, the Council told me that Ms D was not successful in her bids because the properties were let to applicants who either had a higher band or earlier priority date. In one case, the Council explained a property Ms D bid on was restricted to homeless applicants only, but the Council did not have an open homelessness application for Ms D at the time. Based on this evidence, I find the delay in Ms D successfully bidding on a property is not due to any fault by the Council. The Council has limited properties available and has allocated them in line with its policy.
53. Ms D then complained in July 2021 that she had already provided the Council with the necessary proof of residence. She asked the Council to confirm which documents it needed from her.
54. In my view, the Council’s stage two complaint response provided Ms D with sufficient information about the documents it still required before it could consider awarding additional priority. It provided a breakdown of the proof of residency documents received so far from Ms D. It explained which documents it could use as proof of residency and those it could not. The Council said it had checked Ms D’s council tax and housing benefit records, but it was unable to confirm Ms D’s continuous residency through these checks. It provided Ms D with examples of the types of documents it could accept to confirm residency.
55. In the following months, I find the Council corresponded clearly with Ms D about any time periods for which it still required proof of residency. This led to the Council confirming, in November 2021, that Ms D had provided sufficient proof of continuous residency. I, therefore, do not find the Council failed to consider the proof that Ms D had been resident in the Council’s authority area for the last ten years (part c of the complaint).
56. Although there was a slight delay in the Council reaching its decision in November, I do not find this amounts to fault that caused Ms D any injustice. This is because Ms D had moved to live with Ms X in September and told the Council about this change at the same time as sending in the additional proof of residency documents. In December 2021, the Council decided Ms D no longer had an identified housing need because of this change of circumstance. It upheld this decision following a review in March 2022. This was because Ms D was no longer living in overcrowded accommodation as both Ms D and her son had access to their own bedrooms.
57. The Council’s decision here is in line with its housing allocations policy. I do not find it at fault. I understand that Ms X and Ms D disagree with the Council’s decision. However, I cannot question the content of the Council’s decision without evidence of fault in how it made the decision.
58. Based on the Council’s decisions from December 2021 and March 2022, I find the Council has provided Ms X and Ms D with the appropriate information on how Ms D can reapply to join the housing register and submit a homelessness application if she is at risk of losing her home. I do not find it at fault. It is my understanding these options are still available to Ms D.

The Council’s accommodation of Ms D’s mental health difficulties

59. Ms D has explained to the Council that, because of her anxiety and depression, she has sometimes asked Ms X to communicate with the Council on her behalf. Ms D said, in her complaint from July 2021, that she found repetitive requests for documents difficult to manage because of her mental health conditions.
60. Ms D’s anxiety and depression may be considered disabilities under the Equality Act 2010. Based on the evidence I have seen, the Council has communicated with Ms X whenever Ms X has contacted the Council on Ms D’s behalf. It acknowledged this in March 2022 when it sent Ms X and Ms D the outcome of their appeal. I do not find the Council has failed to have due regard to its duty under the Equality Act here. It has provided Ms D with this reasonable adjustment that it considers meets her needs.
61. Having considered the Council’s correspondence with Ms D, the Council asked Ms D on several occasions to let the Council know if she worked a minimum amount of 24 hours per week so it could assess whether additional priority could be awarded.
62. In Ms D’s complaint from July 2021, she told the Council she was employed on a part-time basis (working 18 hours per week as she also needed to provide care for her son). It is my understanding that Ms D worked less than the required hours to be considered for additional priority as a ‘working household’ under the Council’s housing allocations scheme. However, I find that the Council failed to decide whether this was the case. Instead, in September 2021, the Council asked Ms D again to let the Council know if she worked a minimum amount of 24 hours per week so it could assess whether additional priority could be awarded. This fault caused Ms D frustration and uncertainty. I find this was particularly difficult for Ms D as she had explained to the Council repetitive requests for information affected her mental health conditions.

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Agreed action

63. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Ms D for the fault causing injustice;
2. make a decision on whether Ms D should be awarded medical priority or unsatisfactory housing priority. The Council should consider the factors and evidence raised by Ms D in her complaint to the Council. If the Council awards Ms D with either priority, it should consider whether it should backdate the application to the date Ms D originally these submitted issues; and,
3. make Ms D a payment of £400 for the stress, frustration and uncertainty caused by the missed opportunity to have her medical priority and unsatisfactory housing priority assessed by the Council. This payment is slightly higher than our usual remedy range of between £100 and £300. This is because I have also factored in the likely impact on Ms D’s mental health conditions caused by the Council’s repetitive request for information (see paragraph 62 above).
64. Within four weeks of my final decision, the Council has also agreed to share this decision with relevant staff members.
65. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

66. I have completed my investigation.
67. I have decided to uphold parts a and b of Ms X’s complaint. This is because there is evidence of fault by the Council causing Ms D injustice. The Council has agreed to the above recommendations, which are suitable ways for the Council to remedy this.
68. I have not upheld part c of Ms X’s complaint because I have not seen any evidence of fault by the Council causing Ms D injustice.

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Parts of the complaint that I did not investigate

69. Ms X complains about the Council’s actions dating back to September 2019.
70. The laws says 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)
71. Ms X complained to the Ombudsman in October 2021. In this case, I consider she could have complained to the Ombudsman sooner if she wished to raise matters dating back to September 2019, which concerned the Council’s handling of Ms D’s housing register application. I consider an investigation from September 2020 is justified and fair.

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Investigator's decision on behalf of the Ombudsman