Summary: Mr B complained on behalf of Miss X and Mr Y that the Council failed to notify them of their right to appeal a housing allocation decision and failed to deal with reports of mould. Mr B said this impacted on the physical and mental health of Miss X, Mr Y, and their children, and denied them a right to appeal the Council’s allocation decision. We find the Council at fault. This fault caused Miss X and Mr Y injustice. The Council has agreed to apologise, make a payment to Miss X and Mr Y, and improve its service to avoid something similar happening in future. We have not investigated parts of the complaint about a housing application and a data access request. This is because they are either too late or there is another body better placed to deal with that complaint.

The complaint

1. Mr B complained on behalf of Miss X and Mr Y about the way the Council handled their housing. Specifically, Mr B complained that the Council:
1. failed to notify Miss X and Mr Y of their right to appeal a decision about their housing allocation in 2019;
2. failed to appropriately deal with their 2019 housing application, and there were errors in the Council’s assessment;
3. failed to deal with reports of mould at the property; and,
4. has not responded to a data access request.
2. Mr B said the mould has had an impact on the physical and mental wellbeing of Miss X, Mr Y, and their three children. Mr B said the Council denied them their right to request a review of the Council’s housing allocation decision.

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What I have investigated

3. I have investigated parts a and c of this complaint.
4. As I have said below, we cannot investigate late complaints (when someone takes more than 12 months to complain to us about something a council has done) unless we decide there are good reasons.
5. I consider there are good reasons to exercise the Ombudsman’s discretion and investigate part a of this complaint. This is because Miss X and Mr Y did not know the Council had sent the June 2019 decision letter to the wrong address until summer 2021. After this, they did not delay in bringing this part of the complaint to the Ombudsman.
6. Regarding part c of the complaint, Mr B said Miss X and Mr Y have known about problems with mould at the property since 2018. There is no good reason why Miss X and Mr Y did not bring this part of the complaint to the Ombudsman before they complained to us in November 2021. For this reason, I do not find a good reason to exercise the Ombudsman’s discretion and investigate any further back than November 2020.
7. The final section of this statement contains my reasons for not investigating parts b and d of the complaint.

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The Ombudsman’s role and powers

8. 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)
9. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
10. 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)
11. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
12. 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)
13. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
14. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
15. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

16. Miss X and Mr Y have given written consent for Mr B to represent this complaint on their behalf.
17. I considered the information and documents provided by Mr B and the Council. I spoke to Mr B about Miss X and Mr Y’s complaint. Mr B and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
18. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Housing allocations and the right to appeal

19. Councils must have an allocation scheme to determine priorities and set out the procedure it will follow when allocating housing. Each council’s allocations scheme will be different but in general most will award 'reasonable preference' to allocations by awarding points or placing an applicant in a certain priority band.
20. Applicants have a right to request a review of a council’s decision about the number of points or band they have been awarded. When a council tells an applicant its decision, it must tell the applicant in writing of their right to request a review of the council’s decision.

The Council’s ‘Damp Reduction Initiative’

21. The Council has a Damp Reduction Initiative (DRI). This is an internal Council initiative to proactively investigate properties where it has repeatedly visited to carry out damp repairs. The DRI finds ways to tackle the causes of damp symptoms and prevent and/or reduce recurrence.
22. The DRI provides damp surveys. A surveyor completes the damp survey. The surveyor then writes to the tenant with the outcome of the survey, including causes of damp and actions needed to reduce the damp problem.

What happened

23. Miss X and Mr Y live with their three children in a property provided by the Council.
24. In June 2019, the Council sent a letter to Miss X and Mr Y with its housing allocation decision. This was sent to the wrong address.
25. In January 2021, Miss X and Mr Y told the Council there was mould in their property. In March, the Council completed a three-stage mould treatment.
26. In May, a Council officer attended the property and assessed the damp. The officer found no damp problems other than condensation which a lack of ventilation and heating contributed to.
27. In June, Miss X and Mr Y told the Council there was more mould. In July, the Council carried out further mould treatment.
28. In September, another Council officer attended the property. That officer gave Miss X and Mr Y advice on ventilation.
29. Mr B complained to the Council on Miss X and Mr Y’s behalf.
30. In its complaint response, the Council accepted that in June 2019 it sent its housing allocation decision letter to the wrong address. It acknowledged this was fault and that this denied Miss X and Mr Y their ability to ask for a review of the decision, if this is what they wanted. The Council apologised for this. It said it was likely human error.
31. The Council outlined what action it had taken on Miss X and Mr Y’s reports of damp/mould.
32. In a further complaint response, the Council told Miss X and Mr Y about its Damp Reduction Initiative (DRI). It said a surveyor would complete a damp survey on their property then write to them with the outcome.
33. The Council said that neither officer who attended (in May or September) found evidence of mould. It said its DRI team would do a damp survey.
34. In November, Mr B brought the complaint to the Ombudsman.
35. In December, the Council completed a DRI survey. The Council then sent Miss X and Mr Y a letter with a summary of the outcome of the survey and its recommendations.
36. In February 2022, the Council completed a second DRI survey.

Analysis

Failure to notify Miss X and Mr Y of their right to appeal

37. Mr B complains on behalf of Miss X and Mr Y that the Council failed to notify them of their right to appeal a decision about their housing allocation in 2019 (part a of the complaint).
38. In its complaint response to Miss X and Mr Y, the Council accepted that it had failed to send its decision letter in June 2019 to the right address. The Council accepted this was fault. It accepted this fault caused Miss X and Mr Y injustice in that they were denied their right to appeal that decision by not being informed of that right.
39. The Council says the next time it informed Miss X and Mr Y of an allocation decision and told them their right of appeal was in August 2020. However, the Council says it is not able to provide a copy of this letter. Without evidence that this letter was sent in August 2020, I cannot say that the Council sent this letter. Therefore, I cannot say the Council informed Miss X and Mr Y of their right to appeal that decision in August 2020.
40. The Council sent Miss X and Mr Y a housing allocation decision letter in December 2021 which told them of their right to appeal that decision. Miss X and Mr Y exercised this right and requested an appeal.
41. As I have said above, if there is a conflict of evidence or, as in this case, a lack of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
42. In this case, I find it more likely than not that the Council did not tell Miss X and Mr Y of their right to appeal the Council’s housing allocation decision in August 2020. This is because I find it more likely than not that they would have exercised their right to appeal this decision, as they did in December 2021.
43. For this reason, I find that the Council failed to notify Miss X and Mr Y of their right to appeal the Council’s banding decision between June 2019 and December 2021: two and half years. This is fault. This fault caused Miss X and Mr Y injustice because they did not know they had a right to appeal the Council’s decision.
44. I also find the Council at fault for failing to keep proper records. The Council should have copies of its decisions letters. This would show that the Council notified tenants of their right to appeal. Without copies of these letters, there is no evidence to show the Council did this.

Failure to deal with reports of mould

45. Mr B complains on behalf of Miss X and Mr Y that the Council failed to deal with reports of mould at the property (part c of the complaint).
46. As I have said above, I have investigated the Council’s actions from November 2020 onwards.
47. I find the Council acted on each report of mould at Miss X and Mr Y’s property without delay. The Council treated mould at least twice in this period, and referred their case to its Damp Reduction Initiative (DRI). The Council then completed two DRI damp surveys. I therefore cannot agree with Mr B that the Council failed to deal with reports of mould.
48. However, the Council told Miss X and Mr Y in its complaint response that after a DRI survey, the surveyor would write to them with the outcome of the survey and recommendations.
49. I find the Council sent the follow-up letter after its December 2021 DRI survey. However, there is no evidence that the Council sent the follow-up letter after the February 2022 DRI survey.
50. The Council says the surveyor told Miss X the outcome of the survey verbally at the time (February 2022). It accepts it did not send the follow-up letter to Miss X and Mr Y confirming this. This is fault. The Council gave Miss X and Mr Y expectations that they would receive a follow-up letter, but this did not happen. This is injustice.
51. In response to a draft of this decision, the Council provided evidence that it sent this follow-up letter to Miss X and Mr Y in May 2022.

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Agreed action

52. Within four weeks of this decision, the Council has agreed to apologise to Miss X and Mr Y in writing for failing to send the follow-up letter after the DRI survey in February 2022.
53. Within four weeks of this decision, the Council has agreed to make a payment to Miss X and Mr Y of £250. This is to reflect the two and half years that the Council failed to notify them of their right to appeal the Council’s housing allocation decision.
54. In arriving at this figure, I have considered the Ombudsman’s published guidance on remedies. I have taken into consideration the length of time involved, and the impact on Miss X and Mr Y of not knowing about their right to appeal.
55. Within three months of this decision, the Council has agreed to review its practice to make sure all decision letters about housing allocations inform the applicant of their right to appeal that decision.
56. Within three months of this decision, the Council has agreed to review its practice around keeping proper records of housing allocation decision letters it sends.
57. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

58. I have completed my investigation. I find the Council at fault and this fault caused Miss X and Mr Y injustice. The Council has agreed to take action to remedy the injustice caused by the fault, and make improvements to its service to avoid something similar happening in the future.

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Parts of the complaint that I did not investigate

2019 housing application

59. Mr B complains on behalf of Miss X and Mr Y that the Council failed to appropriately deal with their 2019 housing application, and there were errors in the Council’s assessment (part b of the complaint).
60. As I have said above, we cannot investigate late complaints (when someone takes more than 12 months to complain to us about something a council has done) unless we decide there are good reasons.
61. There is no good reason why Miss X and Mr Y did not bring this part of the complaint to the Ombudsman before they complained to us in November 2021.
62. Overall, I consider that reasonable opportunities existed for Miss X and Mr Y to have pursued this matter in a more timely fashion, and within the time limits laid down in law. As such, I have decided there are no good reasons to exercise the Ombudsman’s discretion to investigate part b of the complaint.

Data access request

63. Mr B complains on behalf of Miss X and Mr Y that the Council has not responded to a data access request (part d of the complaint).
64. As I have said above, we normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. This includes data access requests.
65. Mr B says he has complained to the ICO previously and does not like dealing with them. This is not a good reason for the Ombudsman to investigate this part of the complaint. For this reason, I have not investigated part d of the complaint.

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Investigator's decision on behalf of the Ombudsman