Summary: The Council failed to demonstrate that it had engaged with Ms X’s evidence during two reviews of Ms X’s medical priority when she applied for an extra bedroom on the grounds of her child’s disability. The Council did not refer to her child’s medical issues until its third review of her banding. This put Ms X to time and trouble in making multiple applications. The Council has agreed to our recommendations for a financial remedy and service improvements to reflect the injustice caused by this fault.

The complaint

1. Ms X complained the Council;
• failed to properly consider her child’s disability when assessing their priority band for social housing; and
• communicated with her poorly during her applications and appeals.
2. Ms X said the Council’s actions caused distress to her family and that they are unsuitably housed.

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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 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. I considered the information provided by Ms X and the Council.
7. I considered the relevant law and guidance as set out below.
8. I considered our Guidance on Remedies
9. I considered comments made by Ms X and the Council on previous draft decisions before making a final decision.

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What I found

Law and guidance

10. 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))

Allocations and priority banding

11. This Council’s allocations policy prioritises applicants on the housing register using a banding system. This ranges from Band 1 (most priority) to Band 5 (least priority). (Housing Allocation Scheme, London Borough of Waltham Forest, February 2021, section 4.1)
12. The Council says it will award reasonable preference to applicants who are assessed as having a medical priority. (Housing Allocation Scheme, London Borough of Waltham Forest, February 2021, section 4)

Band 3 eligibility criteria

13. The criteria to be in Band 3 includes but is not limited to the following;
• the applicant is owed the full housing duty by the Council under s193 (2) of the Housing Act 1996 and is occupying accommodation secured by the Council.
• the Council decides, taking into account the recommendation of an Independent Medical Advisor, that the physical or mental health of the applicant or a member of his/her household is being significantly adversely affected as a result of their housing situation and the Council is satisfied that they cannot be housed satisfactorily in the private rented sector or via private sector leasing or other temporary accommodation and that they need to be rehoused on a non-urgent basis. (Housing Allocation Scheme, London Borough of Waltham Forest, February 2021, sections 4.6.3 and 4.6.4)

Band 2 eligibility criteria

14. The criteria to be in the higher priority Band 2 includes but is not limited to the following;
• The Council decides, taking into account the recommendation of an Independent Medical Advisor, that the physical or mental health of the applicant or a member of his/ her household is severely adversely affected as a result of their current housing situation and the Council is satisfied that they cannot be housed satisfactorily in the private rented sector or via private sector leasing or other temporary accommodation and that they need to be rehoused urgently. (Housing Allocation Scheme, London Borough of Waltham Forest, February 2021, section 4.5.1)

Reviews of housing decisions

15. The Council’s allocations policy says it will notify the applicant of the review decision within eight weeks of the day on which the request is made to the Council, or such longer period as the Council and the applicant may agree in writing. (Housing Allocation Scheme, London Borough of Waltham Forest, February 2021, section 13.3)

Bedroom entitlement

16. The Council’s allocations policy says, ‘two children under the age of 10 are expected to share a bedroom regardless of their sex.’ (Housing Allocation Scheme, London Borough of Waltham Forest, February 2021, section 5.4.2)
17. However it also says the Council may, ‘subject to an affordability assessment, make an exception to the normal size rules set out above if a Council Panel authorises an increased size on disability/health or social grounds. This power enables the Council to consider, for example, any specific needs of a child or adult to have their own bedroom or any need for a live-in carer.’ (Housing Allocation Scheme, London Borough of Waltham Forest, February 2021, section 5.4.5)

Background

18. Ms X and her husband live in a housing association property with their two young children, Z and Y. It is a two-bedroom flat situated on the second floor of their building.
19. When Ms X joined the housing register in July 2021, she was awarded Band 5, the Council’s lowest priority band, as it considered they were already suitably housed.
20. Z and Y are both under five years old and the Council’s policy says they can share a room. Therefore it considered a two bedroom property to be suitable.
21. Z is the elder child and has health conditions which affect behaviour and sleep.

What happened

22. In October 2021 Ms X applied to the Council for a medical assessment to be carried out as she said the family needed an extra bedroom on medical grounds. She said due to Z’s disabilities it was no longer manageable for Z and Y to share a room.
23. Ms X said Z was going to bed late and waking in the night most nights, affecting Y. She said Z’s condition causes frequent overwhelm and distress so Z needed their own room to regulate their emotions. Ms X said Z’s disability was affecting Y because Z has little awareness of danger and tries to climb in Y’s cot or throws things at Y.
24. Ms X’s application also said her child was at risk in the property as they live on the second floor. She said their faulty window does not close and they have a balcony which Z gets too close to, due to a lack of danger awareness. For this reason Ms X said she needed a ground floor property.
25. Her application included medical evidence from Z’s paediatrician and Child Development Nurse. The medical evidence supported Ms X’s concerns regarding the sleeping, outbursts, lack of danger awareness around the window and balcony and the need for a space to self-regulate.
26. The Council sent her application to its independent medical advisors and an assessment was carried out. The Council contacted Ms X approximately two weeks after he application to say it had decided her banding should change from Band 5 to ‘Band 3 medical priority’. This meant she did not qualify to bid for properties with an extra bedroom, but she could bid for two-bedroom properties situated on the first floor.
27. This decision did not show it had engaged with the medical evidence and did not provide a reason for the Council’s decision. The Council did not refer to any risk regarding the alleged danger posed to Z from the balcony and window. It recommended no higher than a first floor property but did not say why this would be safer for Z or how Z could be kept safe in the meantime while they lived on the second floor.
28. Shortly after, Ms X requested a review of the decision. Ms X sent new medical evidence which again set out the medical issues she had raised.
29. In the same month, the Council considered Ms X’s appeal and sent the evidence to its independent medical assessors. After consideration, the Council decided again that Ms X should be in Band 3 and this time gave a reason for its decision. It said Z did not need an extra bedroom as it is not essential at their age.
30. This decision again did not refer to Ms X’s concerns about needing an extra bedroom on medical grounds. It only referred to its standard rules about siblings sharing bedrooms.
31. Shortly after, Ms X appealed the decision again. This was her third application to the Council for a review of her priority banding. At this stage no new evidence was provided but Ms X highlighted the evidence already provided in the previous applications.
32. Ms X said Z’s age was not relevant and the reason they needed an extra bedroom was due to Z’s disability.
33. The Council again considered the appeal and sent the documents to its independent medical assessors.
34. Three months after Ms X appealed the decision, the Council provided a decision. The decision was a month later than the Council’s standard timeframe for reviews of housing decisions.
35. This time the Council’s decision engaged with the medical evidence. However it maintained that Ms X should remain in Band 3 and continued to recommend a first floor property or lower. Instead of a spare room, it recommended, ‘informally screening a suitably large room to provide [Z] some independent space’.
36. Ms X was unhappy with this decision and after complaining to the Council, she brought her complaint to the Ombudsman.

My findings

First and second medical priority reviews

37. The Council’s first two reviews of Ms X’s priority banding failed to demonstrate that it had engaged with the medical evidence or arguments.
38. Instead, in both cases the Council repeated the brief decision that the independent medical assessor had made. The Council did not explain why it considered that Z’s medical issues did not meet its own eligibility criteria for a higher priority band.
39. It is not for the Ombudsman to question the independent medical assessor’s judgement. However, the Council should have reached its own decision, with reference to the allocations policy, rather than simply adopting the decision of the medical advisor. In this case, the Council repeated the medical assessor’s judgement verbatim and did not address the other issues Ms X raised so there was no evidence that this had happened.
40. Not demonstrating that it had considered Ms X’s medical evidence was fault. This caused Ms X time and trouble in submitting more review requests than were necessary in seeking a full response.

Third medical priority review

41. This decision did engage briefly with the medical arguments. However the recommendation to screen part of a room appeared to accept that Z needed a private space. The Council did not check whether any room in the house would be suitable for this purpose before issuing this advice.
42. The Council said this advice by the medical assessor was only a ‘practical suggestion’ that the family might want to ‘consider’ and therefore the Council was under no obligation to make enquiries into the feasibility of this suggestion.
43. It is understandable that the Council wanted to pass on the suggestion by the medical assessor in case it helped alleviate the stress felt by the family. However the medical assessor’s opinion should not simply be repeated. The Council must make its own decision about what is suitable for the family.
44. In this case if it was only informal advice from the medical assessor, the Council should have made clear that that’s what it was. Instead it could be construed as steps the Council thought Ms X should take in order to make her property suitable for her family. The Council accepted this could have been clearer.
45. Not being clear in its decision making was fault. This fault led to further uncertainty for Ms X regarding whether the Council considered her son needed his own space or not.

Risk of balcony and broken window

46. In all three banding review responses, the Council recommended a property no higher than the first floor but it did not refer to the risk from the balcony or faulty window.
47. It did not explain how Z could be kept safe in the meantime while they lived on the second floor. It also did not demonstrate that it properly considered the risk to Z from these issues.
48. The Council should have considered the risk to Z from the window and balcony when assessing the family’s priority banding and there is no evidence it did. This was fault which led to uncertainty for Ms X as she cannot know whether the Council’s decision would have been different if not for the fault.

Panel consideration of additional bedroom

49. The Council’s allocations policy says that for people requesting an extra bedroom on the grounds of a disability, a Council Panel can consider the specific needs of a child to have their own bedroom.
50. The Council’s policy does state that this is a discretionary option and therefore the Council was not at fault for deciding not to use it in this case.
51. However the Council has agreed, in response to the faults identified, to now refer Ms X’s request for an extra bedroom to the Council’s Panel. I consider this a suitable remedy to help address the uncertainty caused by the Council’s decision-making being unclear during several reviews.

Communication with Ms X

52. The Council responded to Ms X’s first two requests for medical priority assessments in a timely manner. However Ms X’s third application took the Council more than three months to respond to. This was provided a month later than the timeframe set out in the Council’s reviews policy. This was fault.
53. I have considered this delay when calculating the financial remedy for the time and trouble Ms X was put to in submitting multiple review requests.

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Agreed action

54. Within one month of the date of this final decision, the Council has agreed to;
• apologise to Ms X for not properly engaging with her medical evidence during her first two medical priority review requests;
• demonstrate that it has passed Ms X’s case to the relevant Council Panel as agreed, for consideration of her request for an extra bedroom on the grounds of Z’s disability. Ms X should have the opportunity to provide an up-to-date application and medical evidence;
• pay Ms X £250 to reflect the avoidable time and trouble she was caused in making multiple review requests, the uncertainty caused by the Council’s unclear explanations of its decision making and the delay in receiving a response to her third application for medical priority.
55. Within three months of the date of this final decision, the Council has agreed to demonstrate that it has reminded housing officers that;
• it is for the Council to make its own decisions on medical priority and it should be able to demonstrate that it considered the recommendation of a medical assessor in the context of all the evidence and with reference to its allocations scheme;
• its priority banding review decisions should say clearly why it has reached its decisions with reference to the evidence and its allocations policy; and
• the importance of the Council’s banding decisions assessing and responding to any risks identified by applicants that arise from the property.

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Final decision

56. I have ended my investigation. I have found fault leading to injustice and recommended service improvements and a financial remedy.

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Investigator's decision on behalf of the Ombudsman