Summary: Mrs X complained the Council did not award enough points for overcrowding on her housing register application. The Council awarded points in line with its housing allocation scheme. However the Council was at fault for the delay in issuing its review decision and for not explaining the information it relied on when it made that decision. The Council will apologise to Mrs X for the frustration caused and review its process.

The complaint

1. Mrs X complained the Council did not award her enough points for the overcrowding category for her housing register application. She said the Council had not taken into account all appropriate information when deciding the award for overcrowding, including the space standard, the medical information she provided at the stage 2 review, or the impact of the current housing on her children’s education development.

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The Ombudsman’s role and powers

2. 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)
3. 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. Mrs X requested reviews of the housing application decision in May and July 2021. The Council issued its final decision in December 2021. At that point Mrs X was not aware she could make a complaint to us and she only complained in December 2022. There is an ongoing injustice so I have used my discretion to investigate this complaint.
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 Mrs X about her complaint and considered the information she provided.
8. I considered the Council’s comments about the complaint and the supporting documents.
9. I considered the Council's allocations scheme and relevant law and guidance.
10. Mrs X and the Council had an opportunity to comment on the draft decision. We considered comments received before making a final decision.

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What I found

Relevant law and guidance

11. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. Most councils operate a housing register, which records details of those waiting for housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
12. 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))

13. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
14. Government guidance says the bedroom standard is an appropriate measure of overcrowding for allocation purposes and recommends that all housing authorities should adopt it as a minimum. (Allocation of accommodation: guidance for local housing authorities in England 2012)

Council’s Allocation Scheme

15. The Council’s housing allocations scheme is points-based, which awards priority points based on its assessment of the needs of the applicant and members of their household.
16. Applicants can report a change of circumstances, following which the Council will re-assess a person’s application to take account of new information.
17. When considering overcrowding, the Council will assess how many bedrooms an applicant needs using the bedroom standard. This allocates one bedroom for a couple, one bedroom for any two people of the same sex, and one bedroom for two people of the opposite sex, if aged 9 or under.
18. The Council will compare the number of rooms the applicant needs, as determined by the bedroom standard, and compare this to the number of rooms currently available that could be used as bedrooms. If the applicant is one room short of the assessed bedroom need, the Council will award 100 points. If they are two or more rooms short, they will be awarded 250 points.
19. The allocations scheme says where a room that could be used as a bedroom measures less than 50 square feet, “we will award additional overcrowding points – this will be done on a case by case basis”. However, the scheme also says “You can only receive one award”. The scheme does not award additional points where the applicant is deemed to be statutorily overcrowded.
20. To recognise the time people spend on the housing register, applicants who have lived in the Council area for 10 out of the last 15 years receive 10 percent of housing need points for each anniversary of their application.
21. The Council has a two-stage review process for housing register decisions. At stage 1 the original officer will reconsider their decision and provide a decision in writing within 14 days. At stage 2 a reviewing officer will review the decision with any extra information and tell the applicant of their decision within 56 days.

What happened

22. Mrs X lives in a one-bedroom flat with her husband and three children. She was initially accepted onto the Council’s housing register in 2015.
23. In early April 2021 Mrs X asked the Council to review the points awarded. She asked:
• the Council to reconsider the points awarded for overcrowding because one child was now over 10 years old and could no longer share a bedroom with their siblings;
• why it had not assessed overcrowding based on the floor space available (the space standard);
• the Council to consider an additional bedroom because the flat negatively impacted on her children’s ability to study, complete homework and their well being; and
• for a Council Environmental Health Officer (EHO) to assess her living conditions.
24. In mid-May 2021 Mrs X sent the Council a letter from her doctor, which said the overcrowded living conditions affected Mrs X medically including increased stress, headaches and anxiety.
25. In late June 2021 the Council responded to the review request. It said:
• it classed Mrs X’s flat as overcrowded, she was entitled to a 3 bedroom property and it awarded her 100 points;
• Mrs X was not entitled to 250 points for overcrowding based on the Council’s allocation scheme;
• although Mrs X’s children found it hard to study she needed to provide medical evidence of behavioural issues for the Council to consider another bedroom;
• a Council EHO visit was not needed because the Council had already assessed the family as overcrowded;
• it awarded Mrs X 190 points overall considering overcrowding, time on the register and transfer points; and
• Mrs X could look at alternative housing choices and gave information on two alternatives.
26. In early July 2021 Mrs X made a stage 2 review request to the Council. She said:
• she was living in a severely overcrowded flat, with 5 people living in the flat which is big enough for 2.5 people based on the space standard;
• she disagreed the flat was not severely overcrowded and again asked for an EHO to visit to understand the space standard; and
• her mental health was affected by the living conditions and this had an impact on her ability to work and interact with her children and she had provided a medical letter to confirm this.
27. In early September 2021 and early December 2021 Mrs X contacted the Council for its stage 2 review response.
28. In late December 2021 the Council responded to Mrs X’s stage 2 review request. The Council explained:
• Mrs X was entitled to a 3 bedroom property, under the allocations scheme;
• she was lacking 2 bedrooms overall, but she should use the living room as a bedroom while she bid on another flat. This meant she was lacking one bedroom, which meant she was awarded 100 points for overcrowding;
• it would not award further points for family members of different sexes sharing a room because it had already awarded her 100 points for overcrowding; and
• it agreed Mrs X had a disability which was a protected characteristic under the Equalities Act but her application had not been treated differently because of her disability.
29. In early December 2022 Mrs X complained to us.

Enquiries

30. In response to my enquiries the Council:
• confirmed the stage 2 review considered all the available evidence, including Mrs X’s housing application and updates, medical information from May 2021 and Mrs X’s review request from July 2021;
• accepted the reviewer failed to explain they had considered the medical information and not explained why they did not consider this warranted additional overcrowding priority;
• explained that applicants who had lived in the Council area for 10 out of the last 15 years received 10% housing needs points for each anniversary of their application. Mrs X received 10 points for each anniversary since her application;
• confirmed it had awarded Mrs X 200 housing points, including 100 overcrowding points, 70 waiting time points and 30 transfer points;
• apologised for the stage 2 review delay;
• said it had changed its review process to reduce delays in carrying out reviews. Managers now set aside one day a week to respond to reviews or conduct work for reviews and had a target to complete two reviews per day; and
• identified that not all housing options had been considered and Mrs X may want to discuss the possibility of intermediate rental with the housing officer.

My findings

31. The Ombudsman is not an appeal body. Our role is to consider whether councils have followed the correct decision-making process and taken suitable information into account when making their decisions. Unless there was fault in the decision making process we cannot comment on the decision reached.

Housing allocation points

32. The Council assessed Mrs X was short of one room that could be used as a bedroom, for which it awarded 100 points. It assessed this based on the bedroom standard, which is in line with its allocations scheme. Government guidance says this is an appropriate method to assess overcrowding. There is no indication that the rooms considered were less than 50 square feet, which would warrant additional points under the scheme. The Council was not at fault.
33. Mrs X can still ask an Environmental Health Officer to measure the size of her rooms but this won’t affect the points awarded on the housing register because the Council has already recognised Mrs X is overcrowded.
34. The Council confirmed it gave Mrs X 70 points for her time living in the Council area and 30 transfer points. This means it has awarded 200 points in total, which is in accordance with the Council allocation scheme.

Medical needs assessment

35. The stage 2 review decision letter the Council sent to Mrs X did not explain what information it had considered. It is good practice to list the documents considered and explain the reasons for the conclusions reached. In response to my enquiries the Council said the reviewing officer considered the medical information provided by Mrs X and the doctors letter from May 2021 but accepted it did not make this clear in the stage 2 decision. This was fault. This fault caused Mrs X some uncertainty about whether the decision was properly made, for which the Council should apologise. However, I am satisfied this did not affect the decision reached and therefore I have not recommended the Council carries out another review.

Delay

36. In early July 2021 Mrs X asked the Council to carry out a stage 2 review. The Council issued Mrs X her stage 2 review decision five months later in late December 2021. The Council’s process says it should have sent Mrs X her stage 2 review decision in writing in late August 2021. The four month delay in issuing the decision was fault and caused Mrs X frustration.
37. The Council has now put in place a new procedure for officers to assess review requests to reduce future delays. Therefore, further actions were not needed to address this.

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Agreed action

38. Within one month of the final decision the Council will apologise to Mrs X for:
• the frustration caused by the delay in providing the stage 2 review decision; and
• the uncertainty caused by not explaining what information was considered at the stage 2 decision and how she had not met the criteria.
39. Within three months of the final decision the Council will remind all relevant officers the need to ensure decision letters explain what information was considered and the reasons for the conclusions reached.

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Final decision

40. I have completed my investigation finding fault and injustice. The Council has agreed to take action to remedy the injustice and prevent reoccurrence of the fault.

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Investigator's decision on behalf of the Ombudsman