Summary: Mr X complained about the way the Council decided his housing application and about the actions of his housing officer. The Council was at fault in the way it reviewed Mr X’s bedroom entitlement. To remedy the injustice caused, the Council agreed to carry out a new review. We did not find evidence of fault by Mr X’s housing officer, or in the way the Council arranged Mr X’s temporary accommodation.

The complaint

1. Mr X complained about the way the Council decided his housing application and about the actions of his housing officer.
2. Specifically, Mr X complained:
• He is entitled to a two-bedroom home to accommodate his need for an overnight carer, but the Council did not properly consider his medical evidence.
• The Council placed him in unsuitable temporary accommodation because his carer could not provide overnight care.
• His housing officer was rude and shouted accusations at him during a telephone call, leading to Mr X attempting suicide.
3. Mr X said the Council’s refusal to accept his medical evidence caused him distress and resulted in a deterioration in his mental health.

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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. 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

6. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant (including his medical evidence).
• Documents provided by the Council and its comments in response to my enquiries.
• The Council’s housing allocations scheme.
7. Mr X and the Council and the organisation 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

Law and guidance

8. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
9. Someone is threatened with homelessness if, when asking for assistance from the Council on or after 3 April 2018:
• he or she is likely to become homeless within 56 days; or
• he or she has been served with a valid Section 21 notice which will expire within 56 days. [Housing Act 1996, section 175(4) & (5)]
10. If a council has ‘reason to believe’ someone may be homeless or threatened with homelessness, it must take a homelessness application and make inquiries. The threshold for taking an application is low. The person does not have to complete a specific form or approach a particular council department. (Housing Act 1996, section 184 and Homelessness Code of Guidance paragraphs 6.2 and 18.5)
11. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
12. A council must secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. (Housing Act 1996, section 188)
13. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
14. Councils need to consider the suitability of accommodation for households with particular medical and/or physical needs. (Homelessness Code of Guidance 17.5)

The Council’s housing allocations scheme

15. The Council is a partner in a local choice-based lettings scheme which enables housing applicants to bid for available properties which are advertised.
16. Under the Council’s allocations scheme, it calculates that a household needs one bedroom for every adult or adult couple.
17. The Council may, at its discretion, consider an applicant needs an extra bedroom where there is a medical requirement or if an overnight carer is required.
18. The Council will assess medical need having regard to professional advice as necessary.
19. The Ombudsman may not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.

Medical evidence

20. Mr X’s general practitioner (GP) doctor wrote two letters to the Council on his behalf. His GP said: “It would be beneficial for him if there was a room for his carer to reside, particularly over nights where he may need help from a physical perspective due to back pain but also from a mental health perspective due to his low mood and self-harm history. Of note, episodes of mental health crisis and attendance into A&E have been overnight- which is a time when he feels most vulnerable. Therefore the support from a carer at night would be important for him”.
21. Mr X provided the Council with letters from his psychiatrist. The psychiatrist said: “Mr X currently benefits from a carer during the daytime and has requested 24-hour care to help him manage safely and reduce his risk to self.
22. Mr X appears to benefit greatly from support of a carer and has identified that risk to self and risk to others would be reduced greatly with an additional carer at night time. In order for the level of support to take place Mr X would need to be allocated a two bedroomed house”.
23. Mr X’s psychiatrist also provided details of Mr X’s mental health care plan, which includes overnight carers who would provide support with his mental health and personal care. The psychiatrist also discussed the risk Mr X posed to himself and his history of suicidal thoughts and self-harm.

What happened

24. I have summarised below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
25. In 2018, Mr X saw a specialist in hospital due to back pain. The specialist diagnosed degeneration in Mr X’s spine.
26. In April 2020, Mr X was awarded the Personal Independent Payment (PIP) after an appeal. The Tribunal found he had eligible care needs to receive disability benefit payments.
27. Mr X used his PIP to employ a carer. His carer helps plan day to day tasks (like preparing food and medication) due to Mr X’s back pain and anxiety. They also provide support at night, as this is when Mr X struggles most with his mental health. Mr X has previously attempted suicide at night.
28. Mr X made a homelessness application in March 2021. As part of his application, he gave the Council medical evidence and details about his PIP and carer.
29. The Council at first placed Mr X in interim temporary accommodation (TA) in a hotel in March while it considered what duty it owed to him.
30. At the end of March, the Council told Mr X he was entitled to a one-bedroom home. Mr X appealed against the decision.
31. In April, the hotel contacted the Council with concerns about visitors to Mr X’s room, breaching COVID-19 guidelines, and suspicious activity at night when Mr X went out in his car with friends. The hotel said it may have to cancel Mr X’s stay if it continued.
32. Mr X’s housing officer, who I will call Officer A, telephoned Mr X to discuss the hotel’s concerns. Officer A said the hotel made it sound like Mr X was dealing drugs. Mr X said he went out at night to buy food and Officer A was racially profiling him.
33. Mr X spoke with hotel staff. The hotel then told the Council the issue was resolved, and Mr X could have a carer visit as long as they did not stay overnight.
34. At the end of April, the Council moved Mr X out of the hotel and into a one-bedroom home as interim TA.
35. Internal Council emails confirm its housing benefits department was satisfied Mr X’s medical evidence showed his need for a carer, so he was entitled to housing benefits to pay for a two-bedroom home.
36. However, the Council’s housing department said it would only award a second bedroom if regular overnight care is required. It also said with the huge pressure on two bed housing it would not normally award two bedrooms based on the contents of the letter from Mr X’s doctor.
37. As part of Mr X’s appeal, his occupational therapist (OT) wrote to the Council’s housing department in May. They said “Mr X requested a two-bedroom flat in order for a carer to be able to support him 24/7. Mr X appears to benefit greatly from support of a carer and he has identified that risk to self and risk to others would be reduced greatly with an additional carer at night time. In order for this level of support to take place Mr X would need to be allocated a two bedroomed house to accommodate 24-hour care”.
38. A review officer (who I will call Officer B) asked if an extra bedroom was needed, or if Mr X’s carer could use the living room or sofa.
39. Mr X’s carer said Mr X struggled with his mental health most at night and staying in a living room or on a sofa was not practical nor a long-term solution. Mr X’s carer referred to an incident in March where Mr X attempted suicide. They said this could have been prevented by having overnight care.
40. Officer B said the Council would carry out a needs assessment under the Care Act 2014 as the current information did not confirm a medical requirement for a second bedroom.
41. Mr X complained to the Council on 26 May. He said he was staying in one bed TA and was previously in a hotel for two months (from March to May). He said he had two letters from medical professionals asking for a two-bed home so his carer can help him overnight. He said he had been hospitalised twice since being in TA due to the impact not having overnight care had on his mental health.
42. The Council sent its stage one complaint response on 1 June. It said Mr X was in TA while it decided his homelessness application. It said his carer can visit because the TA has a separate lounge to the bedroom. It said it was considering his review about his bedroom entitlement. It also said, given the high demand for two bed houses the Council needs to allocate them only to people who need them.
43. The Council assessed Mr X’s care and support needs in June 2021. The assessor reported to Officer A that the meeting with Mr X indicated he required a two-bedroom home.
44. Officer B asked the assessor to clarify why Mr X needed a second bedroom. They said two-bedroom accommodation is in very high demand and to give a property with two bedrooms to a single adult the Council had to be clear they require this.
45. The assessor said the second bedroom had been requested by Mr X on the advice of his doctor. They said their assessment did not identify two eligible social care needs and housing is not on the list of eligible needs for an assessment under the Care Act.
46. The Council sent its review decision in June. It said it considered Mr X’s PIP award letter, his carer award letter, letters from his GP, psychiatrist, and OT, an email from his carer, and his assessment under the Care Act.
47. The Council recognised Mr X’s low mood and feelings of vulnerability at night. It said it understood why Mr X would like two bedrooms. It said the medical professionals involved in his care reiterated Mr X’s preference for two bedrooms and said he would benefit from this. The Council recognised the benefits of a second bedroom but said none of the medical professionals confirmed it is a requirement on medical grounds.
48. The Council also said there is a shortage of social housing in the area and demand exceeds supply. The Council upheld its decision that a one-bedroom home was suitable.
49. The Council sent its final complaint response on 4 August. It said it understood from Mr X’s medical evidence that he wished to have a carer for 24-hour care, but this had not yet been finalised. It said, until there is medical evidence a carer is needed as part of his care plan, the Council’s offer will remain of a one-bedroom home, given the scarcity and needs of others for two-bedroom homes.

My investigation

50. In response to my enquiries, the Council told me it considered evidence from Mr X’s doctor, psychiatrist, and OT. They said Mr X would benefit from a second bedroom but did not say it was a requirement on medical grounds.
51. The Council said it recognises the benefits of a second bedroom but reiterated none of the medical professionals said it was a requirement on medical grounds.
52. The Council said Mr X’s care assessments confirmed he does not meet the eligibility criteria and does not have eligible needs. His assessments make no recommendations or requirements to meet any care and support needs.
53. The Council said it assessed Mr X as needing a one-bedroom home and it offered him temporary accommodation considered suitable on medical grounds. He was not assessed as needing an overnight carer. For that reason, the Council did not allow a carer to stay overnight at the hotel.
54. The Council said it was sorry Mr X suffered distress after a phone call with his housing officer, but it checked its records and found no evidence the officer was rude or made accusations. Calls are not recorded, so the Council does not have a copy of the call

Analysis

Housing allocation review

55. The Council’s review decision states it considered the views of the medical professionals involved in Mr X’s care. However, on the evidence seen, I am not satisfied the Council properly considered this evidence.
56. Mr X’s psychiatrist produced a care plan for Mr X, dated 21 May 2021, which included overnight care. A care plan sets out the support a person needs or will receive. It goes further than something which is simply a preference or beneficial. I have not seen evidence the Council considered this. The Council’s complaint response on 4 August said he would remain entitled to only a one bed home until he had evidence he needs a carer as part of his care plan. Mr X has such evidence. The Council’s failure to consider that evidence is fault.
57. Mr X’s psychiatrist also assessed the risk Mr X poses to himself, and his history of suicidal thoughts and self-harm. In addition, Mr X’s carer highlighted a recent suicide attempt during the night. While the Council recognised Mr X’s low mood and vulnerability, I have not seen evidence it considered the risk to Mr X if he does not have overnight care, or how the risk can be managed without it.
58. Mr X’s carer said staying on a sofa or in a living room was not a practical or long-term solution. I have not seen evidence the Council considered this further.
59. The Council mentioned housing demand, both in general and for two-bedroom properties, in its internal discussions and in its decision letter. This is an irrelevant consideration. The Council’s review should focus solely on Mr X’s housing and medical needs.
60. The Council considered whether Mr X needed ‘regular’ overnight care. This is a relevant consideration. However, it does not form part of the Council’s allocations scheme. The scheme only states ‘if an overnight carer is required’. It does not say the need for overnight care must be ‘regular’, or how regularly the Council expects someone to need overnight care in order to qualify for an extra bedroom.
61. The scheme states the decision about an extra bedroom is at the Council’s discretion and it will have regard to professional advice as necessary. Unfortunately, the policy does not say how the Council will assess the medical evidence, or what evidence may be needed to demonstrate a medical ‘requirement’ for an extra bedroom. It contains no criteria to assess the evidence against and gives no examples of a what a medical requirement might look like. This gives the Council wide discretion and could lead to inconsistencies. It could also mean officers consider irrelevant factors, like housing demand, as in this case.
62. The wording of the Council’s scheme does not advise officers, or applicants, about the requirements for awarding an extra bedroom with enough detail to give confidence such decisions are made consistently. The Council should consider reviewing its policy and/or providing supplementary guidance to staff setting out the relevant considerations.

Temporary accommodation

63. Mr X told me the TA was unsuitable because it was only one bed, so his carer could not stay overnight.
64. The statutory requirements for suitability of accommodation refers to the closeness and accessibility of the property to medical facilities and other support currently being used by or provided to the applicant which are essential to their wellbeing.
65. Mr X did not ask the Council to review the suitability of his TA. He challenged his allocations priority. He did ask for permission for his carer to stay overnight in an adjoining room while he was staying in a hotel. The Council considered a one bed property met Mr X’s needs, and while a carer could not stay overnight, they could visit. I therefore do not consider the Council acted with fault by refusing Mr X’s request.
66. The Council offered Mr X alternate TA which enabled him to move out of the hotel. While this did not offer a second bedroom, Mr X’s carer could visit and use a separate living room. I appreciate Mr X’s carer said it was not a long-term solution to stay overnight in a living room or on a sofa. However, the Council maintained its decision Mr X only needed one bedroom. That remains in dispute. It is not the Ombudsman’s role to decide someone’s bedroom entitlement and there is no evidence on which I can say Mr X’s TA was clearly unsuitable for his needs.
67. The fact I found fault in the Council’s decision-making about whether Mr X requires a second bedroom does not mean he does require two bedrooms. That decision still rests with the Council.
68. While staying in the hotel, Mr X said a Council officer spoke to him inappropriately and caused him distress.
69. I can appreciate why Mr X was upset by Officer A’s suggestion he was dealing drugs. While the hotel did not say it suspected Mr X of dealing drugs, it did refer to suspicious activity and Mr X driving friends around late at night. The hotel was threatening to cancel Mr X’s stay, so Officer A had a duty to raise this with Mr X and understand what happened. In the circumstances, Officer A could have been more sensitive about the way he raised the subject.
70. While I do not dismiss Mr X’s complaint, he did not raise it with the Council at the time. The Council therefore did not have the opportunity to investigate, and I cannot verify what took place, as there are no records. The Ombudsman has no jurisdiction in personnel matters. It is for the Council to decide what action to take with the officer concerned.

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Agreed action

71. Within four weeks of my final decision, the Council will conduct a new review of Mr X’s housing priority, carried out by a different officer. The review decision should set out the Council’s view on Mr X’s medical evidence and, if the Council maintains its original decision, it should explain why his evidence did not demonstrate a medical requirement for an extra bedroom.
72. If the Council decides Mr X is entitled to an extra bedroom, it will backdate his priority to the date of his housing application and consider whether its fault meant he missed out on any two bed homes.

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Final decision

73. I have completed my investigation. The Council was at fault in the way it reviewed Mr X’s bedroom entitlement. To remedy the injustice caused, the Council agreed to carry out a new review. We did not find evidence of fault by Mr X’s housing officer, or in the way the Council arranged Mr X’s temporary accommodation.

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Investigator's decision on behalf of the Ombudsman