Summary: The Council was at fault for failing to complete a feasibility assessment of adaptations to Miss X’s property in April 2021 recommended to meet the needs of her Disabled child, Miss Y. The Council was also at fault for delay in allowing Miss X to apply to its housing register. The Council has agreed to apologise, backdate Miss X’s application to the housing register, and act to improve its services.

The complaint

1. Miss X complained the Council took too long to decide it could not adapt her home to meet the needs of her Disabled daughter, Miss Y.
2. Miss X also complained about the Council’s handling of her application to move home. She says the Council delayed giving her access to its housing register and has failed to consider the cumulative nature of her family’s needs in deciding their priority for rehousing.
3. As a result, Miss Y remains living in a property which is unsuitable for her needs and cannot be adapted to meet them.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I spoke to Miss X about the complaint and considered the information she provided.
8. I made written enquiries of the Council and considered its response along with relevant law, guidance, and policies.
9. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
10. Miss X and the organisation 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

Housing allocations

11. Every local housing authority must publish an allocations scheme that sets out how it prioritises housing applicants, and its procedures for allocating properties.  All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
12. A council must consider every application made to it. (Housing Act 1996, section 166(3))
13. Councils must notify applicants in writing of the following decisions and give reasons:
• that the applicant is not eligible for an allocation;
• that the applicant is not a qualifying person;
• a decision not to award the applicant reasonable preference because of their unacceptable behaviour.
14. The Council must also notify the applicant of the right to request a review of these decisions. (Housing Act 1996, section 166A(9))
15. The Council operates a choice-based lettings scheme. This means housing applicants can express an interest in available properties. This is called bidding.
16. The Council places applicants who qualify to join the housing register in a priority band from Band A (highest priority) to Band E (lowest priority). This priority is the first factor the Council uses to allocate a property.
17. The priority band date is the date on which the Council placed the application into a priority band. This date is important because the Council uses it to decide priority within a band. For example, if there are three bids for a property from applicants with Band A priority, the applicant with the oldest priority band date will be highest on the list.
18. The Council awards Band A to applicants who
• have Urgent Medical Priority or
• “exceptional social circumstances”.
19. So far as is relevant to this complaint, the Council awards Band B to applicants who:
• Have “very high social circumstances” which are “seriously affected by current housing”
• Have High Medical Priority and at least one other factor which would result in an award of Band C
20. So far as is relevant to this complaint, the Council awards Band C to applicants who:
• Have High Medical Priority, which means their accommodation is not suitable for their medical needs
• The Council decides have high social circumstances affected by their housing
21. The Council “flags” applications from households who need an adapted property. This means when it advertises an adapted property, it prioritises applicants with a “flag”, regardless of priority band.

What happened

22. Miss X is a Council tenant. She lives with her children, including her Disabled adult daughter Miss Y. Miss Y uses a wheelchair and needs help from Miss X to carry out daily living activities. Miss Y’s health has worsened over time. She previously used a manual wheelchair but now relies on a powered wheelchair to get around.
23. The family moved into their current property in 2016. At that time, the Council carried out various adaptations to the property. Since then, Occupational Therapists (OTs) from the County Council have reassessed Miss Y several times. Of relevance to this complaint are assessments in March/April 2021 and May 2022.
24. Miss X asked the Council about rehousing in February 2021. The Council considered it could further adapt the property and did not propose to rehouse the family. The Council did not tell Miss X how to apply to join the housing register.
25. The March 2021 OT assessment recommended either rehousing or extensive adaptation to the property to meet Miss Y’s needs. Miss X and Miss Y disagreed that the Council’s proposed works would meet her needs. As a result, no further adaptations to the property have been made.
26. In a previous investigation, the Ombudsman found fault with the OT assessment. We found that the Council relied on the OT assessment to decide whether to adapt a property and that but for the fault, the Council might have made a different decision.
27. We recommended a new OT assessment. The OT sent this to the Council in May 2022. The May 2022 assessment recommended rehousing. It set out what would be necessary for a property to meet Miss Y’s needs.
28. In June 2022, the Council carried out a feasibility assessment of the property with the OT. This concluded that the property could not be suitably adapted to meet Miss Y’s needs. In particular, the assessment said it “would not recommend any works to be carried out to the front” and that any further works at the property would “achieve very little”.
29. As a result, the Council accepted the family needed to move. Miss X applied to join the Council’s housing register. The Council awarded her Band B for high medical needs and high social circumstances. Her priority date is in June 2022.
30. The Council refers any properties it identifies might meet, or be adapted to meet, Miss Y’s needs to the OT. So far, the Council has identified four possible properties. None of these could be adapted to meet Miss Y’s needs.
31. At the time of writing, therefore, the family remain in their current home.

My findings

Access to the housing register

32. Miss X asked the Council if the family could move in February 2021. The Council told her it did “not feel that a transfer to another property would be a viable option for you”. This was because the Council had already adapted the property and intended to adapt the property further. It said “it would not be practical for you to move to another property which is not likely to be suitable for the needs of your family and may require further extensive adaptation.”
33. This was fault. Miss X had a right to apply to join the Council’s housing register. The Council should have told her how she could make an application. The Council should have decided whether Miss X qualified to join the housing register under its published scheme. Any decision she did not qualify would have carried a right of review. This meant Miss X had a mistaken understanding of her housing choices, which is an injustice.

Delay deciding the property could not be adapted

34. Miss X says the Council took too long to decide it could not adapt her home to meet Miss Y’s needs. The Council’s feasibility assessment in June 2022 said the property could not be adapted. Miss X says if the Council had done a feasibility assessment in April 2021 it would have reached the same conclusion.
35. The Council’s Aids and Adaptations policy says that for all complex adaptations, it will carry out a feasibility assessment. This will include “the feasibility of the adaptation in relation to the layout and structure of the property”. Although the OT met with the Council’s adaptations team to discuss the recommendations, there is no evidence the Council visited to assess the feasibility of adapting the property in 2021. This was fault.
36. The 2021 OT assessment recommended extensive adaptations to the front of the property. The feasibility assessment in 2022 said works to the front of the property were not feasible.
37. Whether a property can be adapted is a decision for the Council to make. While the 2021 OT assessment was flawed, both the 2021 and 2022 OT assessments said Miss Y needed wheelchair access at the front of the property.
38. However, I cannot, even on balance, say that the Council would have decided the property could not have been adapted had it done a feasibility assessment in 2021. This is because the Council’s feasibility assessment is informed by the OT assessment and is conducted alongside the OT. The 2021 OT assessment started from a position that adaptation was possible, including to the front of the property. The 2022 OT assessment found Miss Y’s needs could not be met in the current property, no matter the adaptations. This is a significant change which would have affected the Council’s assessment and decision.
39. This leaves Miss X and Miss Y with a sense of uncertainty about whether the Council would have decided the family needed to move a year earlier were it not for the fault. That is an injustice to Miss X and Miss Y.
40. In the circumstances, given Miss Y’s complex needs and the scarcity of properties which can be adapted to meet them, I recommend the Council backdate Miss X’s housing register application to April 2021 in recognition of this uncertainty.

Priority for rehousing

41. Miss X is in Band B. Miss X says the unique circumstances of the family mean they should have a higher priority. Miss X says the Council should immediately offer them a property in recognition of the extensive delay they have experienced. She says if a property is not available that will meet Miss Y’s needs, then the Council should buy one on the open market.
42. The Council says it cannot buy a property for the family. It must allocate in line with its published scheme. It says Band B is the right priority under its scheme to reflect the family’s circumstances.
43. We cannot say a Council’s decision is wrong if it made the decision properly, considering all relevant information. In this case, the Council considered the circumstances of the family and awarded Band B. There is no evidence of fault in how the Council decided this and so I cannot question it.
44. I understand Miss X needs to move urgently. However, I cannot tell the Council to buy a property for her family. It is for the Council to decide how to use its resources.

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Agreed action

45. To remedy the injustice to Miss X and Miss Y from the faults I have identified, the Council has agreed to:
• Apologise to Miss X and Miss Y in writing;
• Backdate Miss X’s priority on the housing register to April 2021; and
• Refer Miss X’s case to the Senior Officer Panel and communicate the outcome of this to Miss X and Miss Y.
46. The Council should take this action within four weeks of my final decision.
47. The Council should also take the following action to improve its services:
• Remind relevant staff that anyone can apply to join the Council’s housing register, it should not prevent people exercising this right and should provide them details of how to apply if asked.
• Remind relevant staff of the requirement in the Council’s aids and adaptations policy to carry out a feasibility assessment for all complex adaptations, and give guidance on when this should include a visit to the property.
48. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

49. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman