Summary: Ms Y complained the Council failed to provide formal decisions with review rights in response to her requests for priority under its allocation scheme. The Council was at fault and should reconsider its decisions. It should also review its processes to ensure it provides formal decisions with review rights in these circumstances in future.

The complaint

1. Ms X complained, on behalf of Ms Y, that the Council refused to deal with Ms Y’s request for priority for overcrowding on the housing register, wrongly claiming it had previously decided and reviewed that request. Nor did it provide a formal decision about whether she was entitled to a priority star because she was living in unsanitary conditions.
2. Ms X says this means Ms Y:
• did not have the opportunity to make arguments or provide further evidence about the overcrowding;
• may not be in the correct band on the housing register and may have missed out on available properties as a result;
• has suffered frustration and was put to additional time and trouble pursuing the matter.

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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. 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 Ms X provided on behalf of Ms Y, and
• The information the Council provided in response to our enquiries, and its allocation policy, available on its website.
7. Ms X, Ms Y and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Background

Housing allocations

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. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
11. Statutory guidance provides further information on giving reasonable preference in allocations schemes and, at Annex 1, sets out some indicators of housing that may fall into the insanitary, overcrowded or unsatisfactory category. This includes where applicants are sharing a kitchen and bathroom. Councils must have regard to this guidance. However, the list provided in Annex 1 is expressly stated to be for illustrative purposes. (Allocation of accommodation: guidance for local authorities in England (June 2012))
12. Statutory overcrowding is difficult to establish and is largely based on where people sleep. The room standard looks out how many people occupy the property and where they will sleep. It says a couple should share a room. Sitting rooms and dining rooms are counted as available for sleeping. The space standard looks at the number of rooms and the number of people by floor area. A single person should be in a room measuring at least 70 square feet or 6.51 square metres. (Housing Act 1985)
13. For houses in multiple occupation (HMO) the minimum room size for one adult is 6.51 square metres. The HMO licence holder must ensure no room is used by more that the number of people specified in the HMO licence. (The Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences)(England) Regulations 2018).

This Council’s allocations policy

14. The Council uses a banding system to decide priority between applicants for accommodation. There are four bands:
• Band 1 Urgent need to move based on exceptional housing need
• Band 2 Statutory need to move; assessed high housing need
• Band 3 Statutory need to move; assessed medium housing need
• Band 4 Reduced preference.
15. Band 2 includes applicants who have a severe medical, welfare or disability need (including learning disability) where the current accommodation is unsuitable or it is unreasonable to remain in occupation. This includes those with a life threatening condition where their accommodation is a major contributory factor or where their health is so severely affected by their accommodation that it is likely to become life threatening.
16. Band 3 includes applicants owed a homelessness duty, those in overcrowded but not statutorily overcrowded accommodation (as defined by Part X of the Housing Act 1985) and those with a moderate medical priority where their housing conditions directly contribute to causing serious ill health.
17. Priority within the band is determined firstly by reference to a “priority star” system and then by the length of time the application has been placed in that band. Applicants will be awarded a priority star in specific circumstances, including:
• where the applicant is occupying unsanitary or statutory overcrowded housing (as defined by Part X of the Housing Act 1985) or otherwise living in unsatisfactory housing conditions in accordance with hazards identified through the Housing Health and Safety Rating System; and
• applicants who are working.
18. The policy says the Council will make a decision on an applicant’s priority within 28 days of all the information needed to assess the application. If an applicant wants to request a review of the decision, they must request this in writing within 28 days of the date of the decision letter. The Council will carry out a review and provide a decision in writing within 56 days of the request being received.

What happened

19. Ms Y lives in a flat with five other people. She has her own bedroom but shares a kitchen and bathroom with the other occupants. There is no separate living room. The Council accepted her application for the housing register and placed her in band 4.
20. She asked the Council to consider a request for medical priority. The Council considered her request and decided she did not meet the criteria for medical priority. It wrote to her with its decision on 18 September 2021. The decision letter specifically stated that “the issue of overcrowding attracts its own priority” but did not consider that issue further.
21. Ms X, on Ms Y’s behalf, asked the Council to review its decision. She provided supporting documentation in relation to Ms Y’s medical needs. The Council requested further evidence on more than one occasion. It appears to have received all the information it needed to carry out the review by 2 February 2021. Ms X indicated she had hoped to provide a GP letter but this had been delayed due to COVID-19 and, due to the uncertainty around when this could be provided, Ms Y asked the Council to make its decision on the information already sent, which included a copy of her medical records.
22. The Council reviewed the decision and wrote to Ms X and Ms Y with its decision on 16 March 2021. It said it had considered the request to be placed in band 2, set out the criteria for medical priority and explained why the criteria was not met in this case. The decision specifically concluded:
• the information provided did not suggest Ms Y’s health was likely to become life threatening and her accommodation was unsuitable for her to remain in as a result;
• her mental health conditions had not required referral to a psychiatrist or community mental health team, were managed with standard treatment and monitoring, and there was no immediate concern that her life was in danger as a result of her condition; and
• the impact of COVID-19 did not mean she had medical priority since Ms Y had her own room so she could keep separate from other residents, she did not have to use shared facilities when others were using them, and she could sanitise shared environments as required.
23. The decision letter also said:

“I have had regard to your submission that [Ms Y] is living in overcrowded shared accommodation. However, the council do not consider [Ms Y’s] accommodation to be overcrowded based on the information you have provided. [Ms Y] has her own room in a shared house; you have reported that there are 5 persons sharing this space. In accordance with the Housing Act 1985, the property can accommodate 5 persons. There is nothing on the file to suggest that the accommodation is not reasonable and suitable for continued occupation”.

24. The letter concluded that band 4 applicants have little success in bidding for accommodation and suggested other options Ms Y could consider, including making a homeless application or renting privately.
25. On 20 May 2021 Ms X asked the Council to consider whether Ms Y should qualify for band 3 on the basis her accommodation was overcrowded. She explained it was difficult for Ms Y to access shared facilities due to the number of other people using them and, since there was no living room, Ms Y was confined to a small bedroom. She said Ms Y’s medical conditions were made worse by the overcrowded housing and she referred to the 2012 statutory guidance (explained at para 12 above), which indicated Ms Y’s accommodation was overcrowded due to sharing a kitchen and bathroom.
26. The Council did not respond. Ms X complained on 22 June 2021. The Council asked Ms X for further information about the overcrowding issue, and she provided it. The Council responded formally on 19 July 2021. It said:
• There was no material change of facts since its decision on 16 March 2021.
• It did not consider the accommodation was overcrowded, based on the information provided. The property could accommodate five people and there was nothing to suggest it was not reasonable for Ms Y to continue living there.
• There was therefore no requirement to carry out a further review.
27. Ms X complained again on 18 August 2021. She said the issues about overcrowding and unsanitary living conditions had not been addressed in the decision on 16 March 2021, which related to Ms Y’s medical issues, a separate matter. She asked the Council to specifically consider whether Ms Y should have band 3 priority for overcrowding and whether she should have priority on the basis of unsanitary living conditions.
28. The Council responded on 27 September 2021. It said it did not consider the accommodation was overcrowded because Ms Y had her own room within the shared property. It referred to the paragraph in the March 2021 decision that I have set out at paragraph 24 above to show this issue had been considered. Ms X had confirmed there were no changes since then. Ms Y was correctly assessed as being in band 4 and the list in the guidance Ms X referred to was for illustrative purposes only. It said it had addressed the issue of unsanitary conditions in its email dated 3 August 2021. That email said an officer had visited the property and had seen the shared facilities but did not conclude the accommodation was in an unsanitary state. I have only seen an extract of that email but Ms X said this was not a formal decision and did not provide a right of review.
29. Ms X remained unhappy and complained to us. She said the Council should consider whether Ms Y should have band 3 priority based on overcrowding and make a separate decision about that. If it decided Ms Y should be in band 3, it should also check whether Ms Y had missed out on the chance to bid for accommodation as a result of the delay in making the decision. In addition, it should make a separate decision about whether Ms Y was entitled to a priority star on the basis she was living in unsanitary accommodation and should provide a right of review if it decided not to award the priority star.

My findings

30. Ms Y asked the Council to consider whether she was entitled to band 2 priority based on her medical conditions. The Council decided she had not met the criteria for band 2. In its decision letter the Council specifically said the question of overcrowding attracted its own priority.
31. Ms X asked the Council to review its decision. She provided further evidence of Ms X’s medical conditions in support of the review request. She did not provide evidence in relation to overcrowding because that was not part of the decision that she had asked the Council to review.
32. The Council’s review decision said it had also considered overcrowding and, on that basis, it refused to consider it again when Ms Y asked it to do so in May 2021. This was fault. It should have made a separate decision about the overcrowding issue and given Ms X a right of review. As a result, Ms X and Ms Y missed the opportunity to put forward any further arguments or provide additional evidence on the overcrowding issue.
33. I note that the Council has considered whether to award band 3 for overcrowding during the complaints process and has explained why it does not think Ms Y meets the criteria. However, it did not issue a formal decision with a right of review. Therefore, it should reconsider this and issue a formal decision with review rights.
34. The Council should also have made a formal decision about the priority star for unsanitary accommodation and its failure to do so was fault. Again, this meant Ms Y missed out on the chance to ask for a review.
35. There is no evidence of fault in the way the Council carried out the review of its decision about medical priority and therefore I cannot comment on the decision it made.
36. I find no fault with the way the Council responded to the complaint, as it responded to the issues raised and there was no delay in doing so.

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Agreed action

37. The Council will, within one month of the date of the final decision:
• apologise to Ms X and Ms Y for its failure to issue separate formal decisions with review rights in response to the requests for band 3 overcrowding and a priority star for unsanitary conditions; and
• reconsider both requests and issue a separate formal decision with review rights for each request.
38. If the Council decides Ms Y is eligible for band 3 priority or a priority star it should consider whether she has missed out on the chance to bid for property as a result of the delay between May 2021 and its decision to award band 3. If she has missed out, it should consider a suitable remedy for the injustice caused, in line with our guidance on remedies.
39. The Council will, within two months of the date of the final decision:
• review its processes to ensure that it issues a formal decision with review rights in response to all requests for priority under its allocations policy; and
• provides appropriate guidance or training to relevant staff.

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Final decision

40. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman