Summary: Miss X complained the Council wrongly assessed her priority for social housing. There was fault in how the Council decided about Miss X’s housing priority and how it communicated with her. While this did not affect Miss X’s priority, it did cause her avoidable frustration, worry, time and trouble for which the Council agreed to apologise and pay her a financial remedy. The Council also agreed to review how it decides about medical priority.

The complaint

1. Miss X complains the Council has wrongly assessed her priority for social housing. She says the Council has not properly considered the effects of her son’s disability and has discriminated against her family.
2. As a result, the says her family has lived in overcrowded property for longer than they should have done which has caused them significant distress. She wants the Council to accept its errors and provide her with suitable housing.

Back to top

What I have and have not investigated

3. I have investigated how the Council assessed Miss X’s priority for housing from August 2020 onwards, including a review it completed in August 2022.
4. I have not investigated how the Council made its decisions before this. 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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. Miss X first joined the Council’s housing register in 2010 after the Council accepted a duty to house her under homelessness law. Miss X accepted her current property from the Council in 2015, when it made a final offer under homelessness law. This happened over six years before Miss X complained to the Ombudsman in July 2022 and Miss X had the right to appeal the suitability of that offer to the County Court. I do not consider there are good reasons to consider Miss X’s complaints about the Councils’ decisions between 2010 and 2015 now.
7. Miss X next applied to the Council for help with housing in 2018 and she complained to the Council, both herself and through her MP between early and mid-2020. Miss X knew about the existence of the Ombudsman and made complaints to the Council and to her MP. Therefore, I am satisfied that Miss X could have complained to the Ombudsman about events before mid-2020 sooner and there are no good reasons to consider her complaint about these events now.

Back to top

The Ombudsman’s role and powers

8. 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)
9. 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)
10. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
11. 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 “Good Administrative Practice during the response to COVID-19”.
12. 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)

Back to top

How I considered this complaint

13. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law, guidance and Council policy.
14. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Housing allocations

15. 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))
16. 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))
17. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
18. The Localism Act 2011 introduced new freedoms to allow councils to better manage their waiting list and to tailor their allocation priorities to meet local needs.
19. The Ombudsman may not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
20. The Ombudsman recognises the demand for social housing far outstrips the supply of properties in many areas. He may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.

Council’s housing allocations policy

21. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises.
22. The Council allocates applicants for social housing to one of three bands under its allocation scheme:
• Urgent priority: Band 1 – the highest priority for those with the greatest needs for housing, including people with severe health related or disability needs.
• Increased priority: Band 2 – applicants who have a reasonable preference and who are also working, in training, fostering or who have worked with the Council to prevent their own homelessness.
• Moderate priority: Band 3 – applicants who are entitled to a reasonable preference under the law but who do not otherwise qualify for bands 1 or 2. This includes people who need more than one extra bedroom, those with a moderate health or disability related need, or who need to move on welfare or hardship grounds.
23. For applicants who need to move because of their health or disability needs, the Council says they may be entitled to Band 1 priority if it decides the applicant “need[s] to move urgently due to a medical problems or disability which is life threatening or severely affected by [their] current housing situation”. According to the Council, examples of such a need would include:
• the applicant’s life being at risk;
• the applicant has a severe medical condition which is exacerbated by poor housing conditions; and
• the applicant is in hospital and cannot return home because the accommodation is unsuitable for their needs.
24. If the Council “agree[s] that [an applicant] need[s] to move because [their] current accommodation moderately affects [their] medical condition or affects [their] disability, but the need is not urgent enough to go into band 1” then it will assess the applicant as having a reasonable preference and will place them in Band 3. Examples given in the Council’s policy include:
• the applicant’s child has a severe condition and their long-term needs cannot be met in their current accommodation; and
• applicants who have a mental health problem which would significantly improve if they moved to alternative accommodation
25. When assessing the effect of someone’s health or disability on their need for housing, the Council says it relies on advice from an independent medical adviser to support its decision. The Council asks the medical adviser to recommend whether someone needs priority for housing and provides a short section on its standard form for the adviser to explain their recommendation.
26. For an applicant to receive increased priority because they are working, the Council’s policy requires them to:
• be working for at least 16 hours a week; and
• to have been working for at least two years.
27. The Council’s policy says that families who are overcrowded but it decides only need one extra bedroom are not entitled to a reasonable preference and therefore are not entitled to any priority under the scheme.
28. Where it reviews decisions under its scheme, the Council says it will complete the reviews within 56 days.

Council’s complaints procedure

29. The Council has a two stage complaints procedure:
• Stage 1 – the Council will try to resolve a complaint within five working days but, where this is not possible, it will respond within 20 working days.
• Stage 2 – a review of the Stage 1 response and full response within 20 working days.
30. At both stages, if a complaint is complex or takes more than 20 working days to respond to, the Council says it will keep complainants updated on the progress of their complaint.

Equality Act and Public Sector Equality Duty

31. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
32. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010, including disability. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
33. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.
34. The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

What happened

Background

35. Miss X lives in a two-bedroom property with her son and daughter, both of whom are now teenagers. Miss X’s son has a diagnosis of autism spectrum disorder and an Education Health and Care plan from the Council to support him at school. Miss X says that her son’s autism is made worse by having to share a bedroom with his sister. She says this causes conflict in the home and affects the welfare of Miss X and her two children.
36. Miss X first applied to join the Council’s housing register in 2010, when the Council accepted it had a duty to house her under homelessness law. The Council ended its duty to house Miss X in 2015 when it offered, and Miss X accepted, her current two-bedroom property. At the time, Miss X’s two children were young enough that the law considered them able to share a bedroom.
37. Around June 2018, Miss X applied to join the Council’s housing register again. At that time, the Council decided Miss X needed an extra bedroom because her children were now older and could no longer share a room. However, it decided Miss X did not have a reasonable preference because she only needed one extra bedroom and her son’s disability did not justify any further preference, so it rejected her application. Miss X challenged the Council’s decision, including with support from her MP in early 2020. Again, the Council decided that it did not think Miss X qualified for a reasonable preference.

Miss X’s August 2020 application for housing

38. Miss X reapplied for housing in August 2020 on the basis that her son’s disability and the ages of her children made sharing a bedroom even more difficult for them.
39. The Council sent the information about Miss X’s circumstances to its medical adviser who did not recommend that Miss X should have any priority on health grounds. However, the Council decided that Miss X needed to move on welfare grounds and so placed her in Band 3. At first, the Council backdated this to 2019 and later to the date of Miss X’s 2018 application.
40. In October 2020 Miss X complained to the Council that it should have backdated her priority to the early 2010s, as her needs had been the same at the time. Over the next few months Miss X sent several emails to the Council about her complaint, including to the Council’s ‘autism champion’. She asked the Council to escalate her complaint to the second stage of its complaints procedure.
41. The Council responded to Miss X’s complaint in December 2020. The Council refused to backdate Miss X’s priority further because it had offered her, and she had accepted, her current property in 2015. The Council said it had decided at the time that this property was suitable.
42. In early 2021, Miss X asked the Council for a copy of the information it held about her under data protection laws. Following its response to her request, the Council apologised to Miss X that it had lost some of the medical evidence she had provided in support of her earlier applications.
43. Miss X complained to the Council in July 2021 about her priority and that the Council had not replied to some of her emails. The Council agreed to review its previous decisions about Miss X’s priority. It told Miss X that she did not need to get any fresh documentation about her son’s illness or information from her GP.
44. In August 2021, Miss X emailed the Council to tell it she had started working full time and asked for an update on her housing priority in light of this.
45. Around October 2021, the Council asked its medical adviser for another recommendation about Miss X’s housing priority. Again, the medical adviser said that Miss X’s situation did not justify any priority for housing.
46. Miss X chased the Council about her review in January 2022. The Council apologised for the delays and explained that staff sickness and the small size of the team responsible were the main causes of the delay.
47. In a reply to one of Miss X’s emails from April 2022, the Council told her that because she had not been working for two years, she did not year qualify for Band 2 priority.

Review decision

48. The Council completed its review of Miss X’s priority in August 2022, after Miss X had complained to the Ombudsman. In its decision the Council told Miss X that:
• at the time of her first application, Miss X needed two bedrooms based on the ages of her children and therefore, when it offered her a two-bedroom property she was not overcrowded;
• in 2018, Miss X needed three bedrooms, but because Miss X only needed one extra bedroom she was not entitled to any priority based on being overcrowded;
• the Council did not consider that Miss X’s son’s needs showed that she should have priority on medical grounds;
• while the Council had given Miss X Band 3 priority from 2020 (backdated to 2018) on welfare grounds, this would not have applied from 2012.

My findings

49. Normally we can only consider complaints about events which happened in the 12 months before someone complains to us. Miss X complained to us in July 2022, so her complaint about events before July 2021 are late. However, I am satisfied there were significant delays on the part of the Council between July 2021 and July 2022, and that Miss X continued to chase the Council for updates during this time. Therefore, I am satisfied there are good reasons for me to consider how the Council made decisions on Miss X’s housing priority from August 2020 onwards.
50. The Ombudsman is not an appeal body. It is not our role to decide what priority Miss X should have for housing; that is the Council’s responsibility. Our role is to review whether the Council made its decisions in the right way, including whether it considered the right evidence, applied the right policies and gave clear reasons for its decisions.

Decision making

51. When Miss X reapplied for housing in August 2020, she explained how
• her current accommodation was affecting her son’s health condition; and
• how the combination of his health condition and her overcrowded housing affected the wellbeing of Miss X and her household.
52. The Council sought advice from its medical adviser and decided that Miss X was not entitled to a reasonable preference because of her son’s disability. However, the Council did not explain to Miss X why it had reached this decision, despite the evidence she had provided. The information the Council gave Miss X does not show or explain why she did not meet the criteria for Band 3 priority based on her son’s disability and the effect her current housing had on this and her family’s wellbeing. I am not satisfied the Council properly explained how it resolved the conflict between the evidence Miss X provided and the recommendation it received from its medical adviser. This was fault.
53. However, the Council did award Miss X Band 3 priority for welfare reasons and backdated this priority to the date of her application in 2018. From the evidence Miss X provided about her son’s disability, it is unlikely Miss X would have qualified for Band 1 priority, which the Council’s policy says is for the most severe cases. Therefore, I am satisfied that although there was fault in how the Council made its decision in 2020, the outcome was the same as if it had made the decision properly.
54. After Miss X told the Council she had started working in mid-2021, she chased the Council several times for an update on her priority. The evidence shows the Council only responded to this information from Miss X in April 2022 when it told her that she needed to have been in work for two years to have increased priority.
55. I am satisfied that Council’s decision that Miss X did not qualify for Band 2 priority was in line with its policy and the Council provided enough explanation about this. However, there was a significant delay of nearly seven months before the Council responded to Miss X’s emails about her having started working. That delay was fault which caused Miss X avoidable frustration and worry.
56. The Council agreed to review its decisions about Miss X’s priority in July 2021. However, it did not complete this review until August 2022, after Miss X complained to the Ombudsman. So, the Council took over 380 days to complete the review compared with a maximum of 56 days under its policy.
57. The Council has explained part of the delay was due to disruption caused by the COVID-19 pandemic and the small size of the team responsible. While the pandemic did cause some disruption to Council services, I am not satisfied that this fully accounts for the delay. The evidence shows the Council sought advice from its medical adviser in October 2021, but did not make its decision about the review until August 2022. Therefore, I am satisfied the delay in completing the review was fault which caused Miss X avoidable worry and frustration over a significant period.
58. I am also satisfied there was fault in how the Council made its review decision:
• The Council discouraged Miss X from gathering or providing up-to-date medical evidence about her son’s condition and how this was affected by her current housing. This appears to be connected to the Council’s wider approach to medical evidence in health/disability priority decisions, which I will discuss below.
• The advice the Council sought from its medical adviser in October 2021 was based on partial, historic evidence about Miss X’s son’s health conditions. Some of this evidence was relevant to reviewing decisions the Council made before 2015. However, there was little up-to-date evidence from 2018 onwards for the medical adviser to review and this could not take into account any changes in Miss X’s son’s condition nearly five years later.
• The advice from the medical adviser was very brief; only a few sentences. It did not explain how the adviser had considered the information or reached their recommendation about what priority Miss X should have. I am satisfied that this would have made it essentially impossible for the Council officer making the decision to fully understand the advice or the reasons for the recommendation enough for them to form their own view about what priority Miss X needed.
• The Council’s decision did not properly explain how the officer making the decision had considered the evidence available. While the officer listed the information they had considered, they did not refer to the content of that evidence when making their decision. They also did not explain how they had resolved the clear conflict between the medical adviser’s recommendation and Miss X’s evidence of the effect of her son’s disability and her current housing on her family.
• The decision maker also failed to separately consider both the historic decisions the Council had made about Miss X’s priority, and what priority she should have based on her current circumstances.
59. I am satisfied that Council properly considered whether to backdate Miss X’s priority before 2018 and has provided a reasonable explanation for why is should not do so. Miss X had appeal rights about the suitability of the two-bedroom property she accepted in 2015 and there is no evidence Miss X reapplied for housing again until 2018.
60. Although there was fault in how the Council made its review decision, I do not think this made a difference to Miss X’s priority under the Council’s scheme. Miss X already has Band 3 priority which the Council has backdated to 2018.
61. Based on the evidence Miss X has provided about her son’s disability and the effect her current accommodation has on this, it is very unlikely that Miss X would qualify for Band 1 priority under the Council’s allocations scheme. She also has not yet been working for two years, so would not yet qualify for Band 2 priority.

Complaints handling and communication

62. Miss X sent several emails to the Council, including complaints, between August 2020 and July 2022. The evidence shows that the Council failed to respond to a significant number of these emails, including some of Miss X’s requests to escalate her complaint to stage two of the Council’s complaints procedure.
63. When Miss X complained in October 2020, the Council sent its stage one response in December 2020, well outside the timescale given in its complaints procedure.
64. Similarly, the Council failed to respond to several emails from Miss X in early 2021 before it agreed to carry out the review in July 2021.
65. I am satisfied the evidence shows the Council communicated very poorly with Miss X over an extended period. This was fault which caused Miss X further frustration, worry, time and trouble.

Council’s allocations policy

66. The Council’s policy clearly makes provision and accounts for the needs of disabled applicants, where this is relevant to the applicant’s housing situation. Depending on their individual needs, disabled applicants can be entitled to either reasonable preference (as required by law) or urgent priority.
67. I have seen no evidence the Council failed to have due regard to the Public Sector Equality Duty when developing its policy. The Council has provided evidence to show it considered the impact of its policy on disabled people, including the effects of its decision to award increased priority to applicants who are working.

Council’s approach to medical / disability priority

68. Decisions about priority under its allocation scheme must be made by the Council. The Council cannot delegate these decisions to its medical advisers and, according to the Council’s policy, it seeks a recommendation from its medical adviser to inform its own decision.
69. However, the evidence I have seen suggests that, in practice, the Council essentially defers to the recommendation of its medical adviser when making decisions about medical priority over other evidence that might be available.
70. In information sheet about medical priority the Council states that “Letters from GPs, HV [Health Visitors], Social Workers are of no benefit. A clear medical summary from the GP Patient records is used, to match medical criteria to inform the decision”. It also discouraged Miss X from obtaining her own medical opinions to support her application.
71. The Council’s medical advisers do not directly assess applicants and do not have any first-hand knowledge about the individual effects on an applicant of their health conditions beyond their diagnosis conditions or medications from their GP records. Therefore, the advice they provide may, in many cases, be restricted to only general advice based on specific conditions.
72. To have only this limited advice, while discouraging applicants from providing advice from professionals that better know the applicants, is likely to lead to an incomplete picture for the Council decision maker.
73. The Council also explicitly asks its medical advisers to recommend an applicant’s priority, rather than asking for advice on the possible effect of a medical condition on the applicant to allow the Council to make the decision itself. The form the Council uses for this provides very little space for the medical adviser to explain their advice and, on the forms completed for Miss X, this explanation was very short.

Back to top

Agreed action

74. Within one month of my final decision the Council will:
• apologise to Miss X for the delays in completing the review of its earlier decisions and for its poor communication with her;
• pay Miss X £750 made up of:
1. £100 to recognise the avoidable distress and frustration caused by the delays in responding to her 2020 complaint;
2. £150 to recognise the avoidable distress and frustration caused by the delay in responding to Miss X’s notification that she had started working;
3. £300 to recognise the avoidable distress and frustration caused by the delay in completing the review of its decision; and
4. £200 to recognise the avoidable distress, time and trouble caused by the other occasions where the Council failed to respond to messages from Miss X
75. Within three months of my final decision the Council will:
• review the information and guidance the Council provides to applicants and medical professionals about evidence for housing applications. It should ensure that the information does not discourage applicants and professionals from providing relevant information about the effects of health problems or disabilities for professionals who know them well;
• review the requirements it places on its medical advisers to ensure the advice provided contains sufficient explanation of how the recommendation was reached to allow housing staff to fully understand the advice and make their own decision about priority; and
• remind its housing allocations staff that:
1. all decisions about medical priority should be made by the Council; and
2. while they can take into account any recommendation made by the Council’s medical adviser they should not give this any special weight, must also take into account all evidence provided by the applicant and resolve any conflicts of evidence (including with the medical adviser’s recommendation) when making a decision.
• share this decision and associated learning with those staff involved in making housing priority decisions; and
• review the resources it assigns to its housing allocations team to ensure it has sufficient staff to respond to applications and queries from applicants within a reasonable period of time.
76. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

77. I have completed my investigation. There was fault in how the Council made decisions about Miss X’s housing priority and how it communicated with her. While this did not affect Miss X’s priority, it did cause her avoidable frustration, worry, time and trouble for which the Council agreed to apologise and pay her a financial remedy. The Council also agreed to review how it makes decisions about medical priority.

Back to top

Investigator's decision on behalf of the Ombudsman