Summary: We do not uphold Mr X’s complaint the Council wrongly removed him from its housing register. However, we find the Council at fault for delaying its decision by 18 months and for poor communication. The Council has agreed to put Mr X back on the register backdated to his application date and to carry out a statutory overcrowding review. It will also apologise to Mr X for the delay and make him a symbolic payment to recognise his avoidable uncertainty, frustration and time and trouble.

The complaint

1. Ms Y acts as Mr X’s legal representative and complains Brighton and Hove City Council (‘the Council’):
• Removed Mr X and his family from the housing register based on a wrong assessment of his household income.
• Delayed a review of its decision by almost two years.
• Did not consider updated review information and evidence.
• Did not consider the family’s circumstances as part of its review.
2. Ms Y says the Council’s actions left Mr X and his family in unsuitable accommodation and unable to move which affected their health. Ms Y says Mr X and his family also experienced distress, uncertainty and went to time and trouble trying to resolve the complaint.

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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 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)
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)
6. 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)
7. Ms Y complained to us in February 2022. Matters before February 2021 are therefore late complaints. I have investigated them anyway because there are good reasons for the delay in contacting us – Mr X’s language difficulties and his wife’s disabilities, delay by the Council, and lack of awareness of the LGSCO.
8. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”.
9. Our COVID-19 guidance advised Council’s to adapt procedures, anticipate backlogs and ensure service users received updated advice on any potential changes to timescales or delays.

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How I considered this complaint

10. I spoke to Ms Y and considered the information she sent me. I also considered information provided by the Council.
11. Ms Y and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

Housing allocations

12. 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))
13. Councils must notify applicants in writing of its decision and give reasons for the applicant not being eligible for allocation and why they are not a qualifying person. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A (9))

Accommodation Reviews

14. If homelessness is not successfully relieved, a housing authority will owe the main housing duty to applicants who are eligible, have a priority need for accommodation and are not homeless intentionally. Councils must ensure that suitable accommodation is available for the applicant and their household until the duty is completed, usually through the offer of a settled home. (Housing Act 1996, section 193(2))
15. Homeless applicants have a right to a review of the suitability of temporary accommodation provided under the main housing duty (s202, Housing Act 1996).
16. Councils have an ongoing general duty to safeguard and promote the welfare of 'children in need' (and those of their families) in their area. This duty can include providing accommodation. (s17 (6) Children’s Act 1989).
17. There is nothing in the Children Act 1989 that requires councils to ensure that accommodation provided under section 17 is “suitable”. In other words, the council does not need to apply the suitability requirements for accommodation provided under homelessness duties. (R (on the application of Olubunmi Yekeni) v London Borough of Southwark [2014] EWHC 2096 (Admin))
18. Guidance says accommodation provided under section 17 of the Children Act 1989 should be “suitable for the families and children for whom it is intended”.

The Council’s housing allocation scheme

19. The Council’s scheme:
• Identifies classes of people who will not normally qualify for allocation on grounds of ‘having sufficient resources to accommodate themselves’. This includes people in need of a three-bedroom property or above with an annual household income of £36,000 or more.
• Explains income will include ‘money received from earnings, savings and welfare benefits.’ The Council therefore includes housing and council tax benefits as part of its assessment of household income.
• Recognises ‘exceptional circumstances’ where it becomes necessary to reconsider the qualification criteria of applicants who would not normally qualify. It will consider all evidence provided as part of the application and review processes. The onus remains on the applicant to prove their case and each matter is decided on its own merits.
• Says where practicable, it should complete reviews within eight weeks.

Statutory Overcrowding and Medical Priority

20. The law on overcrowded households is in Part 10 of the Housing Act 1985. Statutory overcrowding is calculated by lack of rooms or lack of space. The law provides a calculation according to the floor space of the rooms and the number of people occupying them.
21. The Council’s allocations policy places applicants in priority bands. Banding can only be awarded if an applicant is an eligible and qualifying person. In brief:
• Band A: Includes applicants who are statutorily overcrowded and those awarded priority following advice from a medical assessor because housing conditions are having a severe and immediate adverse effect on health.
• Band B: Includes applicants with severe overcrowding with a household lacking two or more separate rooms or a high medical priority after medical adviser confirmation.
22. If a property is deemed to be statutorily overcrowded, and there are no means to make it suitable, applicants will be placed in Band A to C depending on bedroom needs.

What happened

23. Mr X lives in a three-bedroom property with his wife (Mrs X) and their seven children. Mrs X has depression and the family have to share bedrooms. Mr X joined the Council’s housing register and has been bidding for alternative accommodation for many years.
24. In June 2019, the Council removed Mr X from the register. It said his household income (HI) was over the qualifying threshold. The Council’s records show it based its decision on information from Mr X. This included a tax credits award letter, bank statements and a financial statement about his earnings for the year ending July 2018. The Council calculated Mr X’s HI as £41,945 and told him he no longer qualified.

Review request 2019

25. In July, Mr X sought a review of the Council’s decision. The Council accepted his request and said it would take eight weeks to complete and it would advise him if it was going to take longer than this. He sent emails and telephoned the Council for updates in late 2019 and early 2020 but did not receive any progress updates.

Review 2020

26. In June 2020, a reviewing officer (RO) emailed Mr X and apologised for the delay. He said this was due to a large backlog of cases worsened by the COVID-19 pandemic. The RO asked for Mr X’s updated household income details, measurements of his home to check if there was overcrowding and assured him a decision would follow. The RO also made third-party enquiries to check if Mr X’s property was statutorily overcrowded. Records show the third-party sent details in July. This would have allowed the RO to progress his assessment.
27. Internal emails between the RO and housing assessment team show its initial calculations placed Mr X’s HI below the threshold. Mr X’s housing and council tax benefits were included later and took him over the threshold. Unfortunately, the review and the statutory overcrowding assessment were not completed. Mr X therefore continued to chase the RO and the housing needs team for an update throughout late 2020 and early 2021.

Review outcome 2021

28. In August 2021, the review was assigned to a new officer (NRO) who sought recent financial information. This included an updated tax credit award letter, three months’ bank statements, working tax credit details and an updated self-assessment calculation for his work income.
29. Mr X emailed bank statements, the first two pages of an amended tax credit award letter and a GP letter for Mrs X dated 20 May 2021. The letter said Mrs X was on anti-depressant medication and was having counselling. It requested her family accommodation be upgraded to address overcrowding. Mr X said he also attached a financial statement from his accountant for 2020-2021. He explained his 2021-2022 accounts were not ready.
30. The NRO replied asking Mr X to send the entire tax credit award letter and the outstanding self-assessment income details for 2021-22. In reply, Mr X sent the complete tax credit award letter but said he could not provide anything further for his self-employed earnings.
31. Mr X’s review was unsuccessful. In her housing review outcome letter dated 6 August 2021, the NRO referred Mr X to his income as set out in the tax credit letter. She mentioned his earnings as a self-employed person and an employee. His HI was calculated as £40,158.12 which was over the threshold to qualify for the housing register.
32. Mr X wrote back and explained the tax credits letter contained wrong figures for his work income. He said he was only self-employed. He said his accountant was writing to HMRC to have his record corrected and would forward the statement once received. The NRO acknowledged his comments.
33. In September, Mr X sent the NRO a new tax credit award letter with a lower work income. He also sent photos of pages from a profit and loss record prepared by his accountant. The NRO replied that despite the new information his HI still exceeded the threshold. This was because she had now considered his right to housing and council tax benefits and included them in her calculation. She told Mr X he did not qualify to join the housing register due to his income.
34. In October, the NRO repeated her decision that Mr X was not eligible to go on the housing register based on his HI. She did not mention the housing or council tax benefit issue on this occasion or provide any further explanation.
35. Mr X emailed the NRO and asked her to review his accountant’s financial statement for the review period, as it would show his correct work income. Mr X explained the tax credit letter showed his gross annual turnover, not the net profit amount he took home. Mr X also sent a letter from Mrs X's GP dated 28 September 2021. It contained the same information as the letter mentioned in paragraph 29 (above).
36. Mr X did not receive a further response and therefore continued to seek updates with the housing needs team.

Suitability of accommodation – Review request 2021

37. In December, Ms Y (Mr X’s representative) asked the Council to review the suitability of the family’s housing. She mentioned the family were in overcrowded conditions and complained about the review delays. Ms Y included the GP letter mentioned in paragraph 35 (above) and school reports for the children.
38. The Council made enquiries with the NRO, housing needs team and Children’s services. It wrote to Miss Y and confirmed the accommodation was not organised under the main housing duty. Its records showed Children’s Services had placed the family under section 17 of the Children Act 1989. The Council went on to say the household had either made an unsuccessful homelessness application in the past or the Council’s main housing duty had been discharged in the absence of an offer of accommodation being accepted. The Council confirmed the Mr X was not eligible to be on the housing register because his HI remained unchanged. It referred the matter to Children’s Services for further consideration.
39. Ms Y then approached the Ombudsman in February 2022.
40. The children’s social care team completed an assessment in April 2022. The social worker noted the overcrowded conditions was likely to have a long-term impact on the children. The social worker offered to help Mr X address the overcrowding by moving to larger temporary accommodation or secure accommodation in the private rented sector. Mr X declined the offers and said he wished to pursue his efforts to try to re-join the housing register.

Comments from the Council, including proposed remedies

41. The Council:
• Explained it is currently reviewing its housing allocation income threshold. This is to reflect increased housing costs. The new policy is yet to be implemented but Mr X’s current income will fall below the new cap. It will agree in advance Mr X qualifies for the housing register and backdate his date of registration to May 2019 to recognise its administrative errors.
• Requested a formal statutory overcrowding assessment for Mr X’s property.
• Considered the information from Ms X’s GP. However it decided Ms X’s health was not affected in such a way such that the family had exceptional circumstances to join the housing register as an exception to normal policy.

Was there fault and did it cause injustice?

i) The Council removed Mr X and his family from the housing register based on a wrong assessment of his household income.

42. The Council’s records confirm Mr X’s application was assessed using income evidence provided by him. The Council included income from his work and welfare benefit sources as set out in its allocations scheme (paragraphs 19). This showed Mr X’s household income was above the £36,000 threshold. The Council therefore decided he no longer met the qualifying criteria to remain on the allocations scheme.
43. The Council informed Mr X of its decision and his right to a review. I find no fault in the way the Council reached its decision, communicated the outcome, and informed Mr X of his review rights. Although Mr X does not like the outcome, I find the Council applied its policy, so I have no grounds to question the decision.

ii) The Council delayed providing a review decision by almost two years without valid reason.

44. Mr X sent his review request in July 2019. The Council completed the review and provided an outcome in August 2022. This means the Council’s review was delayed by approximately 18 months. The Council’s policy states it should take eight weeks and the delay is fault.
45. I have considered COVID-19 and pressures on the Council’s resources. However, the Council could have provided a brief written explanation for the continued delay as our Guidance expected of councils during the pandemic. This was poor service planning and communication which caused Mr X avoidable time, trouble, uncertainty, and frustration.

iii) The Council did not consider Mr X’s updated review information and evidence

46. The email records show the NRO considered Mr X’s first batch of review evidence as set out in paragraph 29 (above). The NRO’s review outcome letter dated 6 August 2021 also set out how Mr X’s HI was calculated. However, it did not include Mr X’s housing and council tax benefit entitlement. It is difficult to say if this was an oversight or omitted because Mr X was already over the income threshold, inclusion of these benefits would have increased Mr X’s HI figure and not changed the outcome. I therefore do not find any fault with the Council’s consideration of evidence on this point.
47. The records also confirm the NRO’s consideration of Mr X’s updated tax credit and self-assessment evidence as explained in paragraph 33 (above). However, in emails to Mr X she did not provide a full breakdown of how she reached Mr X’s new HI figure. The emails were unclear which was fault causing confusion.
48. Mr X’s tax credit award letter income figure did not match his accountant’s self-assessment record. The NRO failed to explain whether she had considered information from the accountant and if so, whether she accepted it or rejected it in calculating Mr X’s HI was fault. Mr X therefore believed this information was either overlooked or misinterpreted which caused him confusion. However, there is not enough evidence for me to conclude the result would have been a lower HI had the NRO preferred the accountant’s evidence because of Mr X’s entitlement to housing and council tax benefits, which were also a factor in the calculation.

iv) The Council did not consider the family’s circumstances as part of its review.

49. The Council confirmed it sought a medical advisor’s opinion about Mrs X’s health conditions. It did not accept the evidence was strong enough to apply its exceptional circumstances criteria. It highlighted the onus was on Mr X to show enough evidence to qualify. I cannot criticise the Council’s decision as it followed its correct procedures to reach a professional judgement. I find no fault with the Council’s consideration of Mrs X’s health conditions.
50. The records show the RO received an inventory check of Mr X’s property in July 2020. This was to help decide whether the household needed further assessment for statutory overcrowding. There is no evidence the RO followed this up and the NRO also did not consider this issue as part of her review. The failure to consider and progress the statutory overcrowding enquiries is not in line with the Council’s allocation scheme and is fault. It caused Mr X avoidable frustration and uncertainty about whether he would be in a more favourable position had the overcrowding assessment been completed.
51. The Council has agreed to arrange an assessment for overcrowding in response to my enquiries. This action will remedy the injustice to Mr X once the assessment has been completed. The Council did not undertake a suitability review of Mr X’s accommodation under its housing duties as set out in paragraphs 14 and 15. This is not fault because the family’s home was provided by Children’s Services. The Council was therefore only required to consider the Guidance set out in paragraphs 17 and 18. The records show the Council took appropriate action following Miss Y’s request. The social worker completed a children’s assessment and offered to help Mr X secure larger temporary or secure private accommodation, but Mr X declined the offer. I therefore do not find the Council at fault.

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Agreed action

52. The Council has suggested ways to address injustice caused to Mr X as set out in paragraph 41. This is a partial remedy.
53. The Council should also within a month of my final decision:
• Apologise to Mr X for his avoidable frustration, confusion and time and trouble complaining. And make him a symbolic payment of £500 to reflect this.
• Confirm Mr X’s housing registration and date of joining (21 May 2019)
• Write to Mr X with the outcome of the statutory overcrowding assessment and say which band he will be in.
54. The Council should then provide evidence to the Ombudsman that the above actions have been completed.

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Final decision

55. I find no fault in the way the Council’s reached its decision to remove Mr X from its housing register, considered evidence provided during his review and considered his family’s personal circumstances. I find it delayed reviewing its decision by 18 months, failed to communicate with Mr X and delayed addressing Mr X’s statutory overcrowding issues. The Council has offered to put Mr X back on the register backdated to his application and carry out a statutory overcrowding review. This is a partial remedy. It will also apologise and make Mr X a symbolic payment to recognise his uncertainty, frustration and time and trouble.
56. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman