Summary: Miss X complained the Council removed her overcrowding housing priority meaning she could no longer bid for properties. The Council was not at fault. It considered Miss X’s application in line with its revised housing allocations scheme.

The complaint

1. Miss X complained the Council removed her overcrowding priority on the housing register, so she is no longer able to bid for a three bedroom property, having been on the housing register for a number of years. This has caused her significant distress and frustration.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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 information provided by Miss X and discussed the complaint with her. I have considered the relevant law and guidance and the relevant Council committee papers.
5. I gave Miss X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

6. 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))
7. An allocations scheme must give reasonable preference to applicants in the following categories:
• homeless people;
• people in insanitary, overcrowded or unsatisfactory housing;
• people who need to move on medical or welfare grounds;
• people who need to move to avoid hardship to themselves or others;
  (Housing Act 1996, section 166A(3))
   
8. The Government has published statutory guidance (Allocation of accommodation: guidance for local authorities) which councils must have regard to. The guidance states ‘The Secretary of State takes the view that the bedroom standard is an appropriate measure of overcrowding for allocation purposes, and recommends that all housing authorities should adopt this as a minimum. The bedroom standard allocates a separate bedroom to each:
• Married or cohabiting couple
• Adult aged 21 years or more
• Pair of adolescents aged 10 to 20 years of the same sex
• Pair of children aged under 10 years regardless of sex.’

What happened

9. Miss X lives in a two bedroom property with her two sons, one who is over 21 and the other who is a teenager. Miss X was on the housing register for several years. The housing allocations scheme in place at that time stated all children over the age of 16 were entitled to their own room so Miss X had overcrowding priority.
10. In 2020 the Council carried out a review of its housing allocations scheme. The review proposed introducing a simplified banding system. As part of this it proposed amending the property size rules so that two people of the same gender and generation should be required to share a bedroom, regardless of their age, without incurring overcrowding priority.
11. It carried out a consultation exercise which included a specific question about this change and carried out an equality impact assessment regarding amending the property size rules. The equality impact assessment noted ‘in most cases those affected will be older siblings who would be expected to continue to share a room. It will only affect those of the same generation. Exceptional circumstances can be considered by our Social Needs Panel who can award priority for an additional room’.
12. The review report was considered by the Council’s Cabinet in April 2020. The report stated ‘we considered whether we should raise the age at which household members of the same sex share a bedroom to 21 but it was felt that we still end up with several households assessed as requiring 5 or more bedrooms which are in very limited supply therefore the proposal we have put forward is a more realistic position’. The Cabinet approved the report, and the Council introduced the revised housing allocations scheme in February 2021. The new scheme set out that applicants would be unable to bid until they updated their application.
13. The revised housing allocations scheme set out that ‘two household members (other than the main applicants, couples are expected to share) are expected to share the same bedroom if they are of the same sex and generation (ie an age gap of no more than thirty years)’.
14. It also set out that applicants previously assessed in line with the earlier scheme would be migrated over to the new scheme. It said applicants previously assessed as having reasonable preference ‘for example, but not limited to, an applicant whose previously assessed level of overcrowding no longer applies as a result of the Council’s revision of the property size rules’, the applicant’s banding level and associated priority start date will be reviewed in line with the criteria of the new allocations scheme of 4 February 2021’.
15. In 2021 Miss X found out her bidding was suspended. The Council had applied the new policy to all applications which resulted in a change in her assessed housing need. Following correspondence with the Council, Miss X submitted a formal complaint. She considered it unfair that she was no longer able to bid, having been on the housing register for a number of years. She said the age difference in her sons meant they needed their own space and she was sleeping on the sofa.
16. The Council responded to Miss X’s complaint in October 2022. It said under the previous scheme Miss X’s sons were eligible for their own bedroom so the application would have received reasonable preference. The Council had reviewed its scheme. It said that whilst most adults may prefer to have their own bedrooms it was not a necessity and the lack of available family sized accommodation meant the Council was unable to move all households living in such circumstances. Her application had been correctly assessed and was now placed in band 5. This meant she was not eligible to apply for vacancies advertised by the Council. It suggested alternatives she may wish to consider including a mutual exchange and private sector housing.
17. Miss X remained unhappy and provided information she had received from a housing charity. This referred to the Department for Work and Pensions (DWP) rules about property sizes and suggested Miss X may be able to keep her old priority. The Council considered her complaint at the next stage of its complaints process. It said the reason for the change was that there were a large number of overcrowded families on the housing waiting list but only a limited supply of large homes. While in an ideal world there would be enough large homes for older teenagers and adults to have their own bedrooms, the limited number of larger homes meant this was not possible. As Miss X lived in a two bedroom property it considered she was adequately housed.
18. It explained the housing allocations scheme was not the same as the rules used by the DWP which would allow for a three bedroom property for benefits purposes. In addition, it said the scheme made it clear that where someone was overcrowded under the old scheme but not under the new scheme, the new scheme would apply.

Findings

19. The Ombudsman cannot criticise a council’s decision if there is no fault in the process followed in reaching the decision.
20. The statutory guidance recommends that councils, as a minimum, adopt the bedroom standard in relation to overcrowding which would mean Miss X’s sons would be each entitled to a separate bedroom. The Council in revising its housing allocations scheme departed from the statutory guidance as it requires two people of the same sex and same generation to share a bedroom. However, in revising the scheme the Council specifically considered this change and the alternative option of amending its policy by raising the age for sharing a room to 21 years, which it decided against. It has clearly set out its reasons for amending the policy and departing from the statutory guidance. The Council is not at fault.
21. The Council has assessed Miss X’s housing application in line with its published allocations scheme and there is no fault in the way it has done this.

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Final decision

I have completed my investigation. There is no evidence of fault in the way the Council has decided Miss X’s housing priority.

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Investigator's decision on behalf of the Ombudsman