Summary: Ms X complained about the Council’s handling of her housing requests from October 2019 onwards. The Council was at fault for delays in dealing with some of her requests, for not seeking specialist advice when assessing her family’s needs, and for failing to either keep proper records of its reasons for refusing some requests or to explain its reasons to her. It should apologise, pay her £300 for the uncertainty and additional time and trouble caused, and review its process.

The complaint

1. Ms X complained the Council:
1. Failed to either rehouse her, or adapt her current property to meet her family’s needs since October 2019;
2. Unreasonably refused to refer her case to its Exceptional Needs Referral panel;
3. Offered her an alternative property but then withdrew its offer without giving reasons; and
4. Failed to rehouse her urgently following an incident involving her children in August 2022, which she says means the family are no longer safe at their property.
2. As a result of the Council’s failures, Ms X said the family have been living in unsuitable accommodation from October 2019, which was also unsafe from August 2022. She said this has caused significant distress and inconvenience to the family and caused her avoidable time and trouble pursuing the matter.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. Ms X complained to us in June 2022, about events from October 2019. We would not usually investigate events more than 12 months before the complaint to us, but I have exercised discretion to do so in this case because:
• Ms X has been pursuing the Council consistently throughout this period;
• Ms X complained to the Housing Ombudsman Service, which took some time to inform her it was not the correct Ombudsman to consider her complaint, and there was no delay in her complaining to us after being told that; and
• I am satisfied that there are sufficient records available to enable me to make robust findings and that it will be possible to achieve a worthwhile outcome.
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
7. Ms X raised a new complaint concerning events in August 2022, which the Council was aware of but had not had the opportunity to address through its complaints process. However, I exercised discretion to investigate this matter on the grounds that it was a more efficient use of resources for both the Council and the Ombudsman to consider all the issues complained about in one investigation.
8. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
9. People with disabilities who need adaptations to their property can apply for a disabled facilities grant (DFG). Where the person is a social housing tenant, we can consider complaints about the way their needs were assessed, for example, by an occupational therapist (OT) and the way the council considered the DFG application. However, we cannot consider matters that relate to the council in its capacity as a manager of social housing, including decisions about whether to adapt or extend council properties: the Housing Ombudsman Service (HOS) is the appropriate body to consider those complaints.
10. 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

11. I considered:
• the information Ms X sent me and discussed the complaint with her;
• the information the Housing Ombudsman Service sent to me, consisting of the documents provided to it in the course of its preliminary investigations;
• the information provided by the Council in response to my enquiries, and information available on its website;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
12. Ms X and the Council 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

Relevant law and guidance

Housing allocations

13. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing.  Many councils maintain a housing register which records those waiting for housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
14. 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))
15. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.

This Council’s allocations policy

16. This Council places applicants in one of three bands:
• Band 1 is for applicants assessed as having high priority because they have an urgent need to move or they will release a larger size/adapted home. The Council reviews applications in band 1 annually to check there is still an urgent need to move. Band 1 includes applicants who lack three or more bedrooms.
• Band 2 is for applicants assessed as having a medium priority to move, which is less urgent than applications in band 1. Band 2 includes applications where the housing is unsuitable due to severe medical reasons, which significantly aggravate the medical condition of the applicant or a member of their household but is not life-threatening. Band 2 also includes applicants who lack two bedrooms.
• Band 3 is for those applicants whose need to move is less urgent than those in bands 1 and 2.
17. Within the band, applicants are prioritised based on their priority date, which is usually the date they joined the housing register.
18. The Council has an Exceptional Needs Referral Panel (ENRP) that considers urgent, complex housing cases which are outside its allocations policy.

What happened

19. This decision statement sets out the key facts and events only. It does not attempt to describe everything that happened nor refer to all records seen. I have investigated Ms X’s complaint about her housing situation. During my investigation she has also raised concerns about educational provision for her children and I have advised her those would need to be considered separately.
20. Ms X lives in a Council property with her children, who have special educational needs (SEN). Ms X also has significant disabilities.
21. In October 2019, she made a housing application. She said she needed to move because her property was not suitable for her family’s needs on medical grounds. She also said it was overcrowded and that she needed two extra bedrooms, one for a child and one for an overnight carer. She said the family also needed an additional toilet and shower. Ms X provided medical evidence to support her application.
22. The Council awarded band 2 priority in February 2020. It said an occupational therapist (OT) needed to carry out an assessment of the family’s needs. It arranged for an OT to do this. The OT carried out separate assessments for each of the children. There was some delay in carrying out the assessments because there was a waiting list and because, for a period during the pandemic, OTs were not visiting homes due to COVID-19 restrictions. The assessments were completed in October 2020.
23. Ms X complained about the OT assessments. The Council responded in mid-November that:
• it was standard practice to complete separate reports for each child;
• assessments were intended to be holistic and not limited to the child’s housing needs;
• its OTs had completed training around autism. It accepted they did not have specialist knowledge, but said they worked collaboratively with other professionals; and
• the Council had accepted the family needed to move to a property with one additional bedroom. The OT could consider whether other help was needed whilst they were waiting.
24. Ms X remained unhappy. The Council agreed to commission a specialist OT to carry out a further assessment. The OT carried out the assessment remotely, due to COVID-19 restrictions. They issued their report in early January 2021, which recommended urgent rehousing. The report said the family needed five bedrooms and a minimum of two toilets. The OT said: “facilities must enable overnight stay of familiar respite support network” and identified some actions that could be taken to improve the suitability of the property whilst the family waited for a move.
25. After considering the report, and consulting its independent medical adviser, the Council awarded band 2 in early February 2021 to reflect the increasing ages of the children. It confirmed the family needed five bedrooms.
26. Ms X commissioned a further independent OT assessment, which was completed in February 2021. The report recommended:
• Ms X had the support of a nanny or child care worker to manage the children’s needs during the day and night, ideally a live-in nanny;
• rehousing to an “adequately sized house”, to include a break away room to assist Ms X manage her sensory overload and accommodate an overnight nanny; and
• a support worker to support Ms X’s independence.
27. The Council referred the matter to its medical adviser, who confirmed on 22 February 2021, that their advice about medical priority remained unchanged. We asked the Council to provide us with a copy of the medical adviser’s opinion and evidence it had communicated its reasons for not changing its view to Ms X. It was not able to do so. It said the manager who communicated with the medical adviser at this stage has since left the Council and it has not been able to access their mailbox.
28. The Council considered providing a temporary toilet, which Ms X refused because she said the garden was not big enough for this and the children would not use it. Ms X also refused a permanent toilet in the current space because of the impact on internal space in the property.
29. In March 2021 Ms X asked the Council to consider extending the property. The Council explained that a feasibility study would be needed if the property was being extended rather than reconfigured internally.
30. Ms X made a further complaint, through her MP, to which the Council responded in late May. In the meantime, Ms X made a further complaint, to which the Council responded in late May 2021. This said that:
• Adaptations were being considered and an outcome was expected with the next 28 days; and
• Confirmed Ms X did not meet the criteria for band 1, which is for applicants short of three bedrooms. The OT report and its medical adviser had confirmed the need for five bedrooms and an extra toilet. The OT report did not indicate a need for six bedrooms.
31. In early June the Council discussed the family’s housing needs with the specialist OT, who said the additional bathroom should not be an ensuite as it needed to be accessible by all family members, and she confirmed the children could access a bathroom in the loft space. The specialist OT also recommended some minor adaptations including handrails, window restrictors, support for bath transfers and replacing the internal doors with solid wooden doors.
32. In early July 2021, Ms X confirmed she did not want a temporary toilet in the garden as she said it was unlikely the children would use it due to their aversion to smells. She asked the Council to consider a temporary toilet in the parking area outside the property.
33. In November 2021, Ms X complained to the Housing Ombudsman Service (HOS). The Council told HOS it had fully explored the possibility of Ms X moving to a larger property but there were very few properties of that size, particularly in her area of choice.
34. In late January 2022, Ms X asked for an extra room as a prayer room, sensory room or for use by a carer, and for the Council to increase her priority to band 1. She also asked the Council to urgently refer her case to a senior housing officer.
35. In early February 2022, Ms X asked the Council to consider her case at its Exceptional Needs Referral Panel (ENRP). The Council responded on 10 March 2022. It noted a request had previously been made in early 2020 and an officer had called Ms X in February 2020 to explain the ENRP was only for cases not covered by the allocations policy. It said Ms X’s housing needs were covered by the allocations policy and that it had recently awarded band 2.
36. In June 2022, the Council identified a potential alternative property for Ms X. The Council explained the property was not available immediately as it would need extending to provide the five bedrooms Ms X needed. The Council arranged for Ms X to view the property with relevant officers. Ms X said the Council then withdrew the property without explaining its reasons.
37. In response to my enquiries, the Council said that after telling Ms X about the property it identified that it had been adapted for wheelchair use. As it had other families waiting for a wheelchair adapted home and no-one in Ms X’s household used a wheelchair, it was unable allocate it to her. It said it continued to seek an alternative property for the family. It accepts it did not communicate the reasons for the withdrawal to Ms X, for which it apologised.
38. In late July 2022 the Council considered the request for an extension at a case review meeting, which approved the instruction of an independent surveyor to consider this and declined a request for a temporary outside toilet. The record of the meeting does not set out any reasons for either decision.
39. Following the meeting, the Council asked a surveyor to carry out a feasibility study to consider the possibility of a ground floor extension or a loft extension. The Council records indicate it tried to arrange a site visit, but Ms X refused this on the grounds she did not think an extension was feasible. Ms X disputes she refused a site visit. The surveyors carried out a desk-top analysis of the proposals. The surveyor reported in early August 2022 that neither option was feasible. The surveyor said there was insufficient outside space to extend on the ground floor and that a loft extension would not have sufficient headroom. They also said costs would be significant due to access issues and that, based on approximate budget costs, it would not offer the Council value for money.
40. When asked about the delay in instructing a surveyor, the Council said this was due to COVID-10 restrictions, which led to a backlog of work. It did not specify which restrictions it was referring to. It said it had prioritised cases according to “the urgency and severity of residents’' concerns.
41. In August 2022, Ms X reported an incident involving her children to which the police were called. Ms X asked for an urgent move because she said the family were no longer safe in the property. The Council considered her request but concluded there was no immediate risk. Ms X challenged this. She said the police had flagged the address for an immediate response and arranged for a panic button to be installed.
42. In response to my enquiries, the Council provided a copy of the email the police sent it on the day Ms X reported the incident. This said Ms X had asked for a panic button and for a “special scheme” to be put on the address, but neither were agreed because the police did not believe the family was at risk of any harm that required these measures. The Council confirmed it did not carry out a risk assessment because there was insufficient evidence to support Ms X’s view of the risks.
43. The Council advised Ms X to keep in contact with the police, who would continue to monitor the position. It said it had not received any further reports about this incident.

My findings

44. Ms X applied to the housing register in October 2019. The Council considered her request and the medical evidence she provided. It awarded band 2 for a five-bedroom property in February 2020. We usually expect councils to consider applications within 8 weeks, and although I note this period included the Christmas period, I consider the Council took too long to make its decision, which was fault.
45. The Council said it needed to carry out an OT assessment to properly consider the children’s needs. There was a delay in carrying out that assessment. This was because OTs had not been able to carry out home visits for several months during 2020 due to restrictions to prevent the spread of COVID-19, which meant there was a waiting list. Therefore, whilst I appreciate the delay was frustrating for Ms X, I find this was due to circumstances outside the Council’s control and not due to Council fault.
46. Ms X was unhappy with the OT assessment. The Council acknowledged its OTs did not have specialist autism knowledge. To remedy this, it agreed to commission and fund a private OT assessment. It is unclear why the Council’s OT did not seek input from an autism specialist, nor why the Council did not consider instructing a specialist OT earlier. This meant the assessments completed were not sufficient for the purpose, which was fault.
47. The Council considered the specialist OT report and agreed to change the priority band from 3 to 2. It could have done this earlier but for the fault set out in paragraph 46. It confirmed the family needed five bedrooms.
48. Ms X challenged its decision because she said the OT had referred to facilitating overnight stays by a carer. The Council explained why the specialist OT report did not indicate a need for six bedrooms and its reasons for deciding that band 2 was appropriate. There was no fault in the way the Council considered the family’s housing needs at this stage and its decision was in line with the OT’s recommendations and its allocations policy.
49. Ms X commissioned a further independent OT assessment, completed in February 2021. The Council considered the further report but decided its assessment of the family’s housing need was appropriate. The Council has not been able to provide either the medical officer’s opinion or any communications relating to this because the officer dealing with this has since left the Council. Key information about a case should be recorded on the service user’s file and be accessible to all relevant staff. The failure to keep a proper record of how it considered this assessment and communicated with Ms X about it, was fault.
50. Around this time, the Council also considered a temporary toilet and a permanent toilet within the current space, to assist the family whilst waiting for alternative accommodation. This was in line with OT recommendations. Ms X declined these, as she was entitled to do. Ms X also asked for a temporary toilet located outside her property. The records seen suggest this was declined on the basis that other people could use it. However, the record of the case review meeting in July 2022 does not provide its reasons for declining this request. The failure to keep a proper record of the reasons for its decision was fault.
51. In March 2021, Ms X asked the Council to consider extending the property. The Council properly considered whether it was feasible to extend the property in line with the consideration we would expect for decisions about Disabled Facilities Grants (DFG) and it decided not to extend. However, it took too long to reach its decision. It did not properly consider the request until a case review meeting until late July 2022. The Council said the delay in doing so was due to COVID-19 restrictions and a resultant backlog. It is not clear which specific restrictions it was referring to. However, I note that restrictions on entering someone’s property to carry out repairs ended in June 2020, and the third (and final lockdown) ended in late March 2021. Whilst I accept the COVID-19 pandemic had a significant impact on council services nationally, and did lead to some delay in service delivery, the considerable delay between March 2021 and July 2022 was fault.
52. In February 2022, Ms X asked the Council to consider her case at its ENRP. The Council declined to do so and explained why this was not appropriate. Its decision was in line with its allocations policy and was not fault.
53. In June 2022, the Council identified a potential property for Ms X, which it later withdrew. It has explained its reasons for withdrawing the property. However, it did not explain them to Ms X. The failure to communicate with Ms X was fault.
54. In August 2022, Ms X asked for an urgent move following an incident involving her children. The Council carried out a risk assessment with input from the police. The outcome was that there was no immediate risk to justify an urgent move. Whilst it would have been better for the Council to make a clear record of its reasons for not carrying out a full risk assessment, there was no fault in the way it considered the risks, and it explained its reasons for not agreeing an urgent move was needed.

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Agreed action

55. Within one month of the date of the final decision, the Council will:
• apologise to Ms X for the injustice caused by its delay in deciding her application between October 2019 and February 2020, its failure to either seek specialist autism input or consider commissioning a specialist OT to assess the family’s housing needs in 2020, its failure to keep a proper record of how it consider the further OT report in February 2022, the long delay in considering Ms X’s request for an extension, the failure to record its reasons for declining the request for a temporary toilet outside the property in July 2022, and the failure to explain its reasons for withdrawing a property in June 2022;
• pay her £300 for the uncertainty about whether she would have been rehoused sooner because of the above faults and the time and trouble she was put to pursuing the Council; and
• remind relevant staff of the need to keep clear records of the Council’s reasons for refusing requests and to communicate its reasons to service users.
56. Within three months of the date of the final decision, the Council will review its process for commissioning occupational therapists and provide guidance for relevant staff about when and how to consider either seeking specialist advice to inform assessments of housing needs or commissioning a specialist occupational therapist to carry out the assessment.

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Final decision

57. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman