Summary: Mrs X complains the Council wrongly bypassed her bids for a registered provider property. The Council is at fault as it did not properly record the medical advisor’s recommendations. The Council would have forwarded Mrs X’s nomination to the registered provider if it had properly recorded the medical advisor’s recommendations. However, we cannot know if the registered provider would have offered the property to Mrs X. The Council’s fault caused uncertainty to Mrs X which it has agreed to apologise for and make a payment of £300 to her. The Council will also review its housing allocations policy.

The complaint

1. Mrs X complains that the Council wrongly bypassed her bids for a housing association property as it was not aware of the reasons why Mrs X had medical priority for a three bedroom property and wrongly considered the housing association would not accept her nomination for a three bedroom property despite having medical need for such a property. As a result Mrs X and her family have remained in unsuitable accommodation for longer than necessary which has significantly affected Mr X’s mental health.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have:

• considered the complaint and the information provided by Mrs X;
• discussed the issues with Mrs X;
• made enquiries of the Council and considered the information provided;
• invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

5. 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))
6. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises.
7. The Council has a nomination agreement which sets out how it will make nominations to registered housing providers. The nomination agreement states:

“whilst any nomination agreement will be made in accordance with the Council’s allocations policy, the nomination will also meet the registered provider’s occupancy and eligibility criteria based on the information available to the Council. a nomination that does not meet the registered provider occupancy/eligibility criteria can be rejected.”

8. The Government changed the housing benefit rules from April 2013. The new rules say that a council must reduce someone’s housing benefit if they live in a property which is too large for their needs. There are exemptions in certain circumstances.

What happened

9. Mrs X lives with her husband and two children in a two-bedroom property. She is on the Council’s housing register and was eligible for a two-bedroom property. The Council’s medical advisor subsequently recommended Mrs X should have medical priority for a three bedroom property as Mr X has significant mental health problems and cannot share a bedroom.
10. Mrs X placed bids on three-bedroom properties owned by a registered provider. She was the highest bidder for one property and shortlisted for the other properties.
11. The Council records noted Mrs X had medical priority but did not specify what it was for. So, the officer dealing with Mrs X’s bids was not aware of the medical advisor’s recommendation that Mrs X needed a third bedroom. The Council considered Mrs X was only eligible for a two-bedroom property.
12. The Council bypassed Mrs X’s bid as it considered she did not meet the registered provider’s occupancy criteria. This is because the registered provider would not accept a nomination where the applicant would be subject to the bedroom tax. The Council considered Mrs X would be subject to the bedroom tax as she only required two bedrooms. The registered provider allocated the properties to other families.
13. Mrs X complained to the Council about its decision to bypass her bids. The Council considered Mrs X’s complaint at stage one of its two stage procedure. The Council said Mrs X did not meet the registered provider’s occupancy criteria as she would be subject to the bedroom tax. This is because her sons could share a room. The Council said the medical priority was attached to her application but the details of the medical advisor’s recommendation to show why they had recommended a three-bedroom property had not been added. The Council has now added this information.
14. Mrs X requested her complaint be escalated to stage two of the complaints procedure. The Council again acknowledged it had not properly recorded the detail of the medical advisor’s recommendation for three bedrooms. But it considered this fault had not prevented Mrs X from being offered the properties as she did not meet the registered provider’s occupancy criteria as she would be subject to the bedroom tax.

Analysis

15. The Council is at fault for not fully recording the detail of the medical advisor’s recommendations. This meant the officers dealing with Mrs X’s bids were not aware of the reasons why the medical advisor recommended she be eligible for a three-bedroom property. The question for me is what injustice this fault caused to Mrs X.
16. I understand the Council’s position is that the fault did not cause injustice to Mrs X. This is because it considers the registered provider would not have accepted her nomination as she would have been subject to the bedroom tax. But the Council could not know if the bedroom tax applies to Mrs X at the time it was dealing with her bids. Mrs X’s circumstances are not straightforward given the medical advisor’s recommendation for a third bedroom. There are exemptions from the bedroom tax, including if an applicant has medical reasons for an extra bedroom. Had the Council had been aware of the medical advisor’s recommendations, I would have expected it to have forwarded Mrs X’s nomination to the registered provider to decide if it would accept Mrs X’s bid. I therefore consider the Council’s fault caused Mrs X to miss the opportunity for the registered provider to consider her nomination.
17. I cannot know, on balance, if the registered provider would have accepted Mrs X’s nomination and offered the property to her. But the fault has caused has some uncertainty to Mrs X as to what would have happened if the Council had forwarded her nomination to the registered provider. The Council should remedy this injustice by making a symbolic payment of £300 to Mrs X to acknowledge the uncertainty caused to her. The Council should also ensure it forwards any further bids from Mrs X to the registered provider if she is shortlisted for a property.
18. The Council should allocate housing in accordance with its housing allocations policy. That policy should be transparent so applicants can understand how their application will be dealt with. The Council’s allocations policy does not include reference to applicants also needing to fulfil the registered provider’s occupancy and eligibility criteria. It also does not include reference to the provision in the nomination agreement that bids can be skipped if an application does not meet the registered providers occupancy and eligibility criteria. This is fault. The Council should amend its allocations policy to ensure it is transparent and applicants are aware that registered providers may have their own eligibility criteria and the circumstances where it can skip bids. This would also prevent applicants from bidding on properties they are not eligible for.
19. The Council considered Mrs X required a three-bedroom property due Mr X’s medical needs. But the registered provider’s occupancy criteria potentially over rides the medical priority awarded by the Council and there is a consequent risk of discrimination against applicants with medical need for a larger property. This is because they may not be considered for all the properties they bid on due to their medical needs. The Council should therefore ensure its allocations policy operates in accordance with the Equality Act 2010.

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Agreed action

20. That the Council:
1. Sends a written apology and makes a payment of £300 to Mrs X to acknowledge the uncertainty caused to her by not properly recording the medical advisor’s recommendation that she had medical need for a three bedroom property and failing to forward her nomination to the registered provider.
2. Forwards Mrs X’s nomination to the registered provider in the event she bids on and is shortlisted for one of its properties.
3. Reviews its housing allocations policy to:

• ensure applicants are aware that registered providers may have their own occupancy and eligibility criteria and the Council can skip a bid if an applicant does not meet the registered providers eligibility criteria;
• ensure it operates in accordance with the Equality Act 2010 and address the potential discrimination risk to applicants with medical priority who may not be considered for all the properties they bid on due to registered providers’ eligibility criteria.

The Council should take the action at a) within one month and the action at c) within three months of my final decision.

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Final decision

21. Fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman