Summary: Mr X complains the Council has failed to make reasonable adjustments to allow him to bid on three bedroom properties. The Council is at fault as there is no evidence to show it properly considered Mr X’s request for a reasonable adjustment to its housing allocations policy or considered if it should exercise discretion to depart from its policy. But we cannot know what the outcome would have been for Mr X and we cannot achieve anything more for Mr X as the Council has now offered a property to him.

The complaint

1. Mr X complains:
1. The Council has failed to make reasonable adjustments to allow him to bid on properties of sufficient size, including three bedroom properties, so he can be matched to properties which meet his needs as a wheelchair user and other housing and care needs. Mr X considers that as a result he is missing opportunities to bid on suitable properties.
2. The adverts for properties do not contain sufficient information about the size and layout of the property to allow Mr X to make an informed decision on whether the property will meet his needs. As a result Mr X cannot know if the property is suitable when he bids and is matched to it and he risks missing out on suitable properties while the Council assesses if the property is suitable.
3. The Council’s decision making on the suitability of properties lacks transparency as it cannot explain what guidelines its uses or how it reaches its decisions when assessing the suitability of properties for Mr X.

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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. 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 provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement,
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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 have:

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

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What I found

Law and guidance

Housing allocations

7. 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 accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
8. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
9. The Council operates a choice-based lettings scheme which enables housing applicants to bid for available properties which it advertises.
10. The Council and its housing association partners advertise accessible and adapted homes. Any applicant can bid on an adapted property but applicants who are ‘adapted assessed’ are given priority for adapted properties.
11. The Council’s allocations policy sets out the size of property a household can bid for. Couples are eligible for a one bedroom property.

Equality Act 2010

12. The Equality Act 2010 provides a legal framework to protect the rights of 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.
13. 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. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The protected characteristics referred to in the act include disability.
14. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to anybody which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
15. Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
     

What happened

16. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.
17. Mr X has a number of health conditions and is a wheelchair user. In 2021 Mr and Mrs X applied for and were accepted on the Council’s housing register. The Council considered Mr X was eligible for a two bedroom property as he and his wife could not share a bedroom. An occupational therapist (OT) assessed Mr X’s housing needs and recommended he move to a two bedroom bungalow.
18. Mr X bid on a number of properties. Mr X has said he was also made direct offers of two properties which were not suitable. The Council’s records show it skipped Mr X’s bid on one property and rejected some of his other bids as the properties could not be adapted or would not meet his needs.
19. Mr X raised concerns with the Council that the adverts for available properties did not include the dimensions of the rooms. This meant he could not know if the property would be suitable for his wheelchair and equipment before bidding. As a result, he considered he could not accept a property which he was matched for. Mr X was also concerned that he would not be able to bid on other properties while the Council checked the suitability of the property. The Council’s record show an officer told Mr X that applicants could not usually bid on other properties if they were the top placed bid.
20. During 2021 Mr X continued to place bids but he was not matched to the properties as they could not be adapted or could not accommodate Mr X’s wheelchair.
21. Mr X requested the Council allow him to bid on three bedroom properties as he believed this would give him the space to meet his mobility needs. An OT also sent a letter of support advising that Mr X needed a third bedroom to accommodate relatives who provided respite to Mrs X from caring for Mr X.
22. The Council considered Mr X’s request but refused to increase his bedroom need from two to three bedrooms. The Council said it understood Mr X’s reasons for wanting relatives to stay to provide care but it could not award a third bedroom for this need.
23. In February 2022 the Council arranged another OT assessment to assess Mr X’s housing needs. The assessment recommended an OT inspect properties matched to Mr X to assess their suitability.
24. Mr X requested a review of the Council’s decision not to increase his bedroom need to three bedrooms. Mr X raised a number of reasons for why he considered he should be able to bid on three bedroom properties, including that he considered three bedroom properties would more likely be able to accommodate his needs as a wheelchair user. The Council considered Mr X’s review request but concluded he did not meet the criteria to bid on three bedroom properties.
25. In June 2022 Mr X successfully bid and was matched with a property. In July 2022 the Council’s OT visited the property to carry out an environment assessment. She decided it was too small and it could not be adapted.
26. Mr X successfully bid and was matched with another property. An OT visited the property to carry out an environment assessment. She considered the property would be suitable. The Council sent photographs of the property to Mr X. He considered it was too small to meet his needs. Mr X, an OT and architect visited the property and concluded the property was not suitable.
27. The Council has said Mr X has been matched or considered for a further three properties. An OT has considered the details of the properties or visited them and decided they are not suitable for Mr X’s needs.
28. Mr X considers the Council should make a reasonable adjustment to its allocations policy and allow him to bid on three bedroom properties. This would enable him to be matched with a property which has sufficient space to meet his assessed housing needs. He considers the Council is not being transparent when making its decisions regarding the suitability of properties he is matched to. This is because it cannot show him a matrix or other guidance it uses to make its decisions.
29. Mr X also considers the adverts for properties do not give sufficient information for him to know if they would be suitable before bidding on them.
30. In response to my enquiries the Council has said:

• It has adopted an allocations policy to ensure all applicants are treated fairly and in line with the agreed policy. The Council would not offer a three bedroom property to an applicant with an identified two bedroom need. This is to ensure properties are allocated in a fair way.
• The Council has not offered a direct let to Mr X as he is one of many applicants who require wheelchair accessible property. Mr X is adapted assessed so has priority for adapted properties.
• Property information submitted to the homes4wiltshire site is administered by the letting landlord. The landlords often have limited information on the property which is available. Ensuring properties are suitable is challenging when there are specific criteria required so OTs need to check if properties will meet an applicant’s needs. Potential for adaptations can only be checked on a site visit.

31. The Council has now offered Mr X a two bedroom adapted property.

Analysis

Council not making reasonable adjustments to allow Mr X to bid on a property of sufficient size.

32. Mr X considers the Council should make a reasonable adjustment and allow him to bid on three bedroom properties which he considers would be more likely to have the space to accommodate his wheelchair and meet his housing needs.
33. Councils should allocate housing in accordance with their housing allocations scheme. But councils also have a duty under the Equality Act 2010 to consider if they should make reasonable adjustments to policies to ensure applicants with disabilities are not placed at substantial disadvantage. Councils should also ensure they do not fetter their discretion and consider if applicants circumstances warrant a departure from policy.
34. The Council considered Mr X’s request to be eligible to bid on a three bedroom and his request for a review of its decision that he was not eligible. In doing so it considered whether Mr X required a bedroom for a carer and the occupational therapist assessments. I acknowledge Mr X disagrees with the Council’s decision that he does not meet the criteria for a three bedroom property. There is no evidence of fault in how the Council reached that decision. So I do not have grounds to question the decision that he does not meet the criteria.
35. But there is no evidence to show the Council considered if Mr X’s circumstances warranted a departure from its bedroom need criteria. In response to my enquiries, the Council said it would not allow a person with two bedroom need to bid on a three bedroom property. On balance, this is fault as the Council is fettering its discretion. It also did not consider Mr X’s request for a reasonable adjustment to be allowed to bid on three bedroom properties.
36. I cannot know what the outcome would have been if the Council had considered whether it should make a reasonable adjustment for Mr X or if it should exercise its discretion and depart from its bedroom need criteria. It is also not proportionate to pursue Mr X’s complaint any further. This is because the Council has now offered Mr X an adapted property. But the Council should ensure officers are aware they should consider whether an applicant’s circumstances warrant a departure from its policy.
37. The Council’s partner landlords will not consider matching housing applicants who are already matched to other properties and are at the pre assessment stage. I have concerns that this could potentially be indirectly discriminatory to applicants with disabilities. This is because applicants with disabilities have to wait for an OT to assess the property to decide if it will meet their needs. This assessment will inevitably take time. So applicants with disabilities are prevented from being matched with other properties for potentially a longer period of time than a non disabled applicant. The Council has agreed to write to its partner landlords to request they do not skip applicants who are at the pre assessment stage to ensure they are not disadvantaged. I am satisfied this action will address the concerns about applicants with disabilities being disadvantaged.

Adverts

38. The Council has explained why the adverts for available properties do not contain information such as floor plans or room dimensions. I understand this was frustrating for Mr X but I do not consider the lack of information amounts to fault. This is because the Council does not control the information the landlords provide about their properties.

Lack of transparency in how the Council decides whether a property is suitable.

39. Mr X considers the Council should be able to show the guidelines or matrix it considers when assessing if a property is suitable for him and there are general guidelines on sizes of properties. The suitability of properties will be affected by many factors such as layout or location and will therefore have to be assessed on their own merits. I therefore do not consider the Council to be at fault for not having specific guidelines or matrices.
40. But the Council should be able to explain to Mr X why a property is not suitable to ensure its decision is transparent. Mr X has said he did not believe the Council had followed up his bids. In response to my enquiries, the Council has explained why the matched properties are not suitable. It has also provided an email to Mr X explaining why one property was not suitable so I have no reason to doubt it followed up Mr X's bids. The Council has said Mr X could log onto his account to find out the position with the other properties. It is not clear if Mr X was aware the Council’s decision would be on his account. However, it is not proportionate to pursue the matter further as the Council has now offered a property to Mr X.

Other issues

41. Mr X raised concerns about the OT initially telling him one property was suitable and then finding it to be unsuitable when she inspected with Mr X and an architect. Mr X considers the OT should be able to make a decision on suitability. The Council is not at fault for seeking additional, professional opinions on whether a property is suitable. The assessment of the property could change with inputs and additional information from the architect and Mr X. This does not amount to fault.
42. I also do not consider the Council to be at fault for not making further direct offers to Mr X. It has explained its reasons so I am satisfied it has considered if it was appropriate to make further direct offers.

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Agreed action

43. That the Council will write to its partner landlords to request that they do not skip applicants at the pre assessment stage to ensure they are not disadvantaged if they require an occupational therapy assessment to determine the suitability of a property they have been matched with.
44. The Council should take this action within one month of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. The Council is at fault as there is no evidence to show it properly considered Mr X’s request for a reasonable adjustment to its housing allocations policy or considered if it should exercise discretion to depart from its policy. But I cannot know what the outcome would have been for Mr X and I cannot achieve anything more for Mr X as the Council has now offered a property to him. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman