Summary: Miss X complained the Council failed to properly consider the suitability of her property and delayed an Occupational Therapy (OT) assessment. We found the Council had considered the affordability and noise issues Miss X raised. However, it delayed the OT assessment and does not appear to have considered exercising discretion regarding the length of time Miss X had been resident in its area. We recommended an apology, a payment and actions to put things right.

The complaint

1. Miss X complains the Council failed to properly consider the suitability of the property she was living in and the impact of noise and disturbance from neighbours. She complained the Council failed to arrange an Occupational Therapy (OT) assessment about the impact on her daughter, who has Autism and other diagnoses which make her sensitive to noise.
2. Miss X complains that her daughter finds the noise and disruption at the property distressing and this causes a worsening of her mental health, anxiety and lack of sleep. Miss X is also affected by the noise from her neighbour and by the impact the matter causes to her daughter.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I spoke to Miss X and considered the information she provided to me. I asked the Council for information and considered its response to the complaint.
6. Miss 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

Homelessness Legislation

The prevention duty

7. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help them to secure that accommodation and ensure it does not stop being available for their occupation. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)

The relief duty

8. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)

Main Housing Duty

9. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need, a council has a duty to secure that accommodation is available for their occupation (unless it refers the application to another housing authority under section 198). But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Housing Allocations Schemes

10. A housing 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))
   

11. The Council’s housing allocation policy states that, normally, applicants will need to show they have lived continuously in the borough of Barnet for 5 years (this is referred to as Residential Connection). Where someone cannot show this, applicants are limited to the lowest band of housing priority (Band 4). The policy recognises there are exceptional circumstances in which this may be disapplied. These include but are not limited to households who had to move due to police advice or where there is a threat to life.
12. Medical points can be awarded by the Council based on criteria set out in the Council’s policy. This can increase the priority band they are allocated. (However, someone without a five-year residential connection will not be able to exceed priority band 4).

Background

13. Miss X rents a flat on the ground floor of a converted house.

Noise Reports

14. In March 2022 she reported excessive noise from the flat above her. This included banging, noisy appliances, loud music and disturbance from frequent parties. Some of the noise was at night. Miss X’s daughter is Autistic and she explained she is sensitive to noise as a result.
15. The Environmental Health (EH) team investigated. As part of their initial investigations, EH carried out a visit to Miss X and attempted to visit the tenants above. They left a letter for the tenants explaining the noise reports received and asking them to be considerate. EH officers followed up by telephone. The tenants above stated they also heard noise from Miss X’s property.
16. In April, as there had been no more reports, EH closed their file.
17. The case was later reopened following a further report from Miss X. She provided a video of guests at her neighbour’s property banging on her door when they left in the early hours of the morning. EH officers visited Miss X again and met with the tenants upstairs. They discussed the issues and gave advice to limit noise.
18. In early July Miss X reported noise to the out of hours service but no-one attended on that occasion. In September, the tenants moved out, so the Council closed its file.
19. In October 2022 Miss X made a fresh complaint about noise from the new tenant upstairs. She stated their child ran around causing a lot of noise, loud voices could be heard and their washing machine caused noise and vibration. The noise continued until late in the evening. The Council wrote to the new tenant to raise concerns and ask them to be considerate. EH officers visited Miss X at the end of October and explained they could not take action because the noise was normal domestic noise which would not be a statutory nuisance. They noted the noise was heard because of poor sound insulation. In November, as there had been no further complaints, the case was closed.
20. In March 2023 following a further report from Miss X, EH officers sent a further letter to her neighbour about late night noise. This further noise complaint was closed in April.

Housing

21. Miss X contacted the housing department in June 2022 seeking help to find new accommodation. Miss X raised two issues about her flat. She stated it was unaffordable because her rent was £200 per month over the Local Housing Allowance (LHA) rate. She also raised the issue of noise from the tenants above and explained this was causing difficulties for her Autistic daughter.
22. Miss X provided various documents to the Council. These included a self‑assessment form for medical and special needs dated 24 June 2022 describing her daughter’s medical conditions and the difficulties the presented. In addition to the noise, she explained her daughter’s refusal to use stairs. In the last section of the form Miss X stated she had moved to the borough to flee domestic violence. The noise and behaviour of the neighbours meant that her daughter was not able to calm down and settle when she was having difficulties. She stated the property was also unaffordable.
23. The Council carried out a full housing assessment on 7 July 2022. During its consideration of Miss X’s case the Council contacted the landlord and they advised the Council about attempts to resolve the noise issue. On 18 July 2022 Miss X’s landlord confirmed that they had received noise complaints from Miss X which had been passed to the landlord of the upstairs flat but they had since been referred to the noise team at the Council to resolve.
24. The Council referred Miss X’s case to its medical advisers on 21 July. The brief response from the medical advisers stated Miss X’s housing needs were for first-floor accommodation (maximum), lifted or unlifted. It stated there was nothing else specific.
25. On 2 August Miss X’s Housing Officer emailed Miss X stating the Council had accepted a Homelessness Prevention Duty towards her because the Council was satisfied that Miss X was threatened with homelessness as a result of anti-social behaviour from her neighbours which was having an impact on her daughter’s health. She stated the Council had also taken into account the affordability issues at the property. The Council sent a letter dated 29 July 2022 formally confirming it accepted she was threatened with homelessness.
26. Miss X complained in October 2022. She stated a private landlord, which the council introduced her to, had cancelling a viewing after she told them about her daughter’s disability. She believed this may have been because of discrimination. She stated she had moved to the borough fleeing domestic violence and had involved the police and courts. She stated she was moved as a matter of urgency. She reiterated the affordability issue and explained this was causing her to fall behind with other priority bills. She also reiterated the issues with noise and her daughter’s property and that EH could not take action. She explained the distress her daughter was experiencing.
27. On 1 November the Council spoke with Miss X about her complaint and responded the following day. It explained the background to the private landlord cancelling a viewing – this was because of a large number of people wanting the property in question. It stated Miss X’s property agent would mediate between her and her neighbours regarding the noise and they would consider if more insulation could be used to better soundproof the properties. The Council discussed Miss X’s referral for an OT assessment which was being initiated by her child’s paediatrician. The Council stated they would take any formal reports into consideration.
28. On 2 November the Council asked its Medical Advisers to consider the documents on file and information Miss X had provided.
29. On 9 November the Council chased the property agent for an update about the medication and consideration being given to soundproofing.
30. In late November, Miss X’s property agent emailed Miss X and the tenant above. He stated a builder had been consulted and nothing could be done to improve sound insulation. The email set out steps that both Miss X and the other tenant had agreed to take to try to limit disturbing one another.
31. On 6 December housing officers received the Medical Advice. The advice noted that Y’s sleep difficulties pre-dated the current property and her noise sensitivity and behavioural issues were not limited to the home environment. They noted noise from Miss X’s neighbour had been addressed and there were allegations against both Miss X and her neighbour. They found Miss X’s current property was suitable for her to occupy. They recommended any new accommodation be on the ground floor. The Council told Miss X the outcome on 9 December.
32. In late December the housing officer began discussing an incentive scheme with Mrs X’s landlord.
33. In January 2023 the Council told Miss X it was satisfied her property was unaffordable because her rent was above the Local Housing Allowance (LHA) rate. It explained its discussions with the landlord and said, subject to her Landlord agreeing a new lease of at least 12 months at the lower LHA rate, the Council would make an incentive payment to the Landlord for the difference. This would allow Miss X to afford the property and stay there for at least 12 months.
34. On Miss X complained on 27 January. She stated the Council had not understood her housing problem or acknowledged her present flat was unsuitable. The property was unaffordable, but it was also unsuitable because of the impact of noise given her daughter’s additional needs and she had explained this to the Council. She noted her application for housing had not yet been banded.
35. On 10 February the Council placed Miss X’s application into Band 4.
36. On the same day the Council responded to her complaint. It set out the actions taken by the housing officer. It stated its medical advisers had assessed her medical need twice. They had considered information from EH which indicated the property lacked insulation. However, they stated Miss X’s daughter’s noise sensitivity was not only occurring at home and her difficulties with sleep had not been caused by the property; they existed before they moved there. The Council explained the steps taken to tackle affordability. This included Discretionary Housing Payments (DHPs) and the offer of the incentive scheme to her Landlord.
37. The Council found the steps it had taken to consider her application had been reasonable.
38. In terms of banding, the Council noted it had accepted a homeless prevention duty at the end of July. This meant the council had a duty to help Miss X keep her current property or find an alternative. It stated the Council would only place an application in a priority band once all relevant enquiries were completed. In this case it had been pursuing the incentive scheme to enable her current property. The Council did not uphold Miss X’s complaint.
39. On 9 March Miss X escalated the complaint. She believed the Council was not taking her situation seriously. She added that the Council had refused to refer her for an OT assessment and the process of medically assessing her daughter had not been the best.
40. In late March the housing officer spoke to the social care OT team about Miss X’s circumstances. On 4 April 2023 the housing officer made a referral for an OT to assess Miss X’s circumstances to see if the OT team could provide advice regarding her child’s needs. She explained the noise impact to Miss X’s daughter.
41. On 6 April the Council responded to Miss X’s complaint further. It re-iterated its view that the housing officer had acted appropriately. It ran through the actions she had taken including liaising with the landlord and property agent to try to tackle the noise issue and making referrals to the medical team. It disagreed that she had focused only on affordability.
42. It considered the application had been assessed correctly by the medical team. It noted the evidence Miss X supplied was considered in July 2022 and the application was referred back to the medical team in November 2022 after Miss X sent some further information. On both occasions the medical team found her property was suitable for Miss X and her daughter to occupy.
43. Because the property was considered suitable to occupy, the council explained the housing officer negotiated with the landlord to agree an incentive payment. This would secure the property at a lower rent for Miss X, for twelve months, helping with the affordability issue.
44. The Council accepted once it had referred Miss X’s application for an OT assessment, this should have been pursued by Barnet Homes, despite the medical team not identifying an OT assessment as necessary. It stated, as a result, the housing officer had now made a referral and the incentive payment offered to the landlord would be placed on hold pending the outcome of the OTs assessment.
45. On 2 May 2023 an OT visited Miss X and her daughter at home. They sent a subsequent email to the housing officer giving their findings. They stated the present property was no longer meeting their needs as they had issues with noise from various tenants above them. This disrupted her daughter’s sleep and had a direct impact on her behaviour. The OT stated Miss X’s daughter had no awareness of danger, and she would self‑harm when feeling challenged or distressed. The OT stated a house which has been converted to maisonettes had very limited sound proofing and the landlord had looked at providing some sound proofing, which unfortunately they could not do. The OT stated purpose-built flats were discussed with Miss X. They generally seem to have better noise insulation, although Miss X understood that no guarantees can be made with any property. The OT went on to advise that her daughter found stairs a problem and they would need level access property on the ground floor or with a lift and access to outside space.
46. On 10 May the Council told Miss X it now accepted a relief duty because the housing officer was satisfied Miss X was homeless as a result of her accommodation not meeting her daughter’s needs. The Council stated it could offer temporary accommodation or Miss X could remain in her current property while looking for alternative housing. Miss X chose to remain where she was due to uncertainty about whether Temporary Accommodation may be worse for their circumstances.
47. In May 2023 Miss X asked the Council to review her priority banding. This was on the basis of the impact of her current property on her child’s health. The housing officer referred to the medical advisers. Miss X’s priority for housing was limited to Band 4 because the Council noted she had lived in the borough for less than 5 years. The housing officer noted, if the 5 year residency restriction did not apply, Miss X would be in Band 2, not Band 4.
48. On 1 June the Council’s medical assessors updated their recommendations. This was based on the OT advice received dated 9 May 2023. They stated Miss X needed ground floor accommodation or lift access to the first floor, with all living space on a single level internally and no steps at the entrance. Miss X needed access to an outdoor space nearby and there needed to be adequate soundproofing. As of 1 June, the Council’s medical adviser stated there was no exceptional reason to waive the need for 5 years residential connection. They suggested it could be reconsidered if Miss X completed a new form.
49. On 7 July the Council advised Miss X that its relief duty had come to an end. It accepted a full duty to house Miss X.
50. On 25 July 2023 the Council’s medical adviser, following a review of the case, suggested to the housing officer that they should consider a waiver of residential connection limitation. They noted this was primarily to ensure continuation of Miss X’s daughter’s education – as she received school transport to a local school. This was ongoing when the Council responded to our enquiries.
51. Following the OT assessment in May 2023, and the finding that the property was unsuitable for Miss X and her daughter, the Council could no longer agree to the incentive scheme. This was because the Council could not pay to secure an unsuitable property for Miss X. The Council told us that it has advised Miss X to re-apply for a Discretionary Housing Payment so it could consider whether it can provide support with her rent / rent arrears while she is seeking a suitable property.

OT Referral – Background

52. In October 2022, Miss X told her housing officer that she had been advised by a clinical-lead Occupational Therapist (OT) that they would be referring her to the Council’s OT team to carry out an OT assessment. Miss X had been told this was because OT assessments to support housing applications had to be done by the Council. Miss X’s housing officer stated they could refer any new information Miss X obtained to the medical advisers when received.
53. Miss X referred to the referral in a phone call with a housing officer in November.
54. In early November, MASH contacted Miss X’s housing officer stating Miss X had approached them seeking an OT assessment. However, a referral would have to come from housing. This prompted Miss X’s housing officer to email the Council’s OT team explaining Miss X’s circumstances and stating Miss X would benefit from an OT assessment.
55. The OT team referred to the Medical Assessment Team at Barnet Homes. They stated OT assessments were no longer routine for housing.
56. Miss X chased the OT assessment via MASH in February 2023. This was passed to the Medical Assessment Team at Barnet Homes. They told the referrer and Miss X’s housing officer that they did not need an OT assessment to assess her housing needs. As a result, no OT assessment was carried out. When Miss X raised the issue of an OT assessment in her complaint in March 2023, an OT assessment was then arranged. This took place in early May 2023.

Was there fault

57. The Council’s environmental health team took the actions we would expect to consider the noise Miss X was reporting. During the course of their investigations, EH officers wrote to the tenants above, spoke with them on the telephone and met with them to discuss the issues being reported. EH established that noise could be heard more by both households because the property (a converted house) had inadequate insulation between the floors. While the noise was an issue for Miss X and her daughter, it was not actionable as a statutory nuisance. This was because much of it was general household noise.
58. The Council issued formal notification to Miss X when it determined she was owed a prevention duty July 2022. There is evidence that housing officers considered both the noise issue and the affordability of the property. They referred the medical evidence provided by Miss X to medical advisers who considered the noise issue did not make Miss X’s property unsuitable. I understand Miss X considered the medical advice about suitability was wrong. However, the decisions the medical adviser made, did took account of all on the information available at that time. As there was not fault in the decisions, I do not have grounds to question them.
59. Under the prevention duty the Council continued to work on the affordability issue that the Council accepted as grounds to consider Miss X remained threatened with homelessness. On the basis the property was otherwise suitable, the Council agreed an incentive payment with Miss X’s landlord. In principle this was appropriate action.
60. However, there was fault in the way the Council handled Miss X’s request for an OT assessment from November 2022. The housing team agreed to make the referral, but this did not ultimately happen. This was fault. It led to a delay in obtaining OT advice. When this was received, it changed the Council’s position.
61. When the Council pursued the OT assessment it took around 4 weeks to take place. It resulted in the Council accepting a relief duty to Miss X on the basis she was homeless. So, if the Council had pursued the OT assessment in November, it is likely this would have taken place in mid to late December 2022. It follows that it is likely a relief duty would have been accepted at that time, around 5 months earlier. The delay was fault. It is also likely that this would have enabled the Council to place Miss X in a housing priority band in mid to late December as a result.
62. In addition, because Miss X had not lived in the borough for 5 continuous years, her application for housing was limited to priority band 4 when it was banded in February 2023. However, I found there was a failure to properly consider whether the rules around Residential Connection should be disapplied in Miss X’s case because Miss X had moved to the borough to flee domestic violence. The Council’s allocation policy allows it to apply discretion, in exceptional circumstances, to remove the Residential Connection limit if someone has lived in the borough less than 5 years. The Council should have considered whether Miss X’s need to move to the borough because of domestic violence warranted discretion to be applied. If it were applied, Miss X would have been eligible for Band 2 priority.
63. To remedy the delay in pursuing an OT assessment, I have recommended the Council amends Miss X’s priority date to mid-December. I have also recommended that the Council revisits whether it should exercise discretion to waive the lack of Residential Connection in Miss X’s case and, if it does, it should take other action as appropriate.
64. I understand Miss X reduced the rent she was paying, in or around January 2023. This was in anticipation of a reduction in her rent because of the incentive payments being discussed. I have not seen evidence this was on the direction of the Council and the incentive proposal had not been confirmed at that point. There was no fault in the Council’s change of position (its decision that it could no longer make this incentive payment). I note the Council has invited a fresh application for a Discretionary Housing Payment so it can consider if it should support Miss X further with her rent while she seeks a suitable property/help with her arrears.
65. The Council’s response to our enquiries noted that it had incorrectly stated, in a decision letter in August 2022 that it accepted Miss X was homeless/threatened with homelessness because her property was unsuitable as a result of anti-social behaviour from her neighbours. It stated, at that time, it was only the affordability that it considered an issue. This was fault, and could have led to confusion. However, given the other issues we have identified and asked the Council to remedy, I do not consider this error in itself led to injustice to Miss X.

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Agreed action

66. Within four weeks of my final decision the Councils should:
67. Send a written apology to Miss X for the impact of the fault we have identified.
68. Make a payment to Miss X of £150 to recognise that the time, trouble and frustration she was put to in chasing the OT assessment.
69. Amend Miss X’s priority date to 15 December to remedy the delay the OT assessment caused.
70. Review whether discretion should be applied to waive the Residential Connection limitation on Miss X’s housing priority because she moved to the area following domestic violence. If it decides that discretion should be applied, and higher priority should have been given, this should be backdated to the new priority date of 15 December. The Council should also review whether Miss X missed out on housing because she did not have this higher priority from that date. If Miss X did miss out on housing, the Council should offer Miss X the next suitable property that becomes available, taking account of her needs.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. There was fault by the Council. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman